Domesday Book and Beyond: Three Essays in the Early History of
England
by F.W. Maitland
Essay One
Domesday Book
At midwinter in the year 1085 William the Conqueror wore his
crown at Gloucester and there he had deep speech with his wise
men. The outcome of that speech was the mission throughout all
England of 'barons,' 'legates' or 'justices' charged with the
duty of collecting from the verdicts of the shires, the hundreds
and the vills a descriptio of his new realm. The outcome of that
mission was the descriptio preserved for us in two manuscript
volumes, which within a century after their making had already
acquired the name of Domesday Book. The second of those volumes,
sometimes known as Little Domesday, deals with but three
counties, namely Essex, Norfolk and Suffolk, while the first
volume comprehends the rest of England. Along with these we must
place certain other documents that are closely connected with the
grand inquest. We have in the so-called Inquisitio Comitatus
Cantabrigiae, a copy, an imperfect copy, of the verdicts
delivered by the Cambridgeshire jurors, and this, as we shall
hereafter see, is a document of the highest value, even though in
some details it is not always very trustworthy.(1*) We have in
the so-called Inquisitio Eliensis an account of the estates of
the Abbey of Ely in Cambridgeshire, Suffolk and other counties,
an account which has as its ultimate source the verdicts of the
juries and which contains some particulars which were omitted
from Domesday Book.(2*) We have in the so-called Exon Domesday an
account of Cornwall and Devonshire and of certain lands in
Somerset, Dorset and Wiltshire; this also seems to have been
constructed directly or indirectly out of the verdicts delivered
in those counties, and it contains certain particulars about the
amount of stock upon the various estates which are omitted from
what, for distinction's sake, is sometimes called the Exchequer
Domesday.(3*) At the beginning of this Exon Domesday we have
certain accounts relating to the payment of a great geld,
seemingly the geld of six shillings on the hide that William
levied in the winter of 1083-4, two years before the deep speech
at Gloucester.(4*) Lastly in the Northamptonshire Geld Roll,(5*)
we have some precious information about fiscal affairs as they
stood some few years before the survey.(6*)
Such in brief are the documents out of which, with some small
help from the Anglo-Saxon dooms and land-books, from the charters
of Norman kings and from the so-called Leges of the Conqueror,
the Confessor and Henry I, some future historian may be able to
reconstruct the land-law which obtained in the conquered England
of 1086, and (for our records frequently speak of the tempus
Regis Edwardi) the unconquered England of 1065. The reflection
that but for the deep speech at Gloucester, but for the lucky
survival of two or three manuscripts, he would have known next to
nothing of that law, will make him modest and cautious. At the
present moment, though much has been done towards forcing
Domesday Book to yield its meaning, some of the legal problems
that are raised by it, especially those which concern the time of
King Edward, have hardly been stated, much less solved. It is
with some hope of stating, with little hope of solving, them that
we begin this essay. If only we can ask the right questions we
shall have done something for a good end. If English history is
to be understood, the law of Domesday Book must be mastered. We
have here an absolutely unique account of feudalism in two
different stages of its growth, the more trustworthy, though the
more puzzling, because it gives us particulars and not
generalities.
Puzzling enough it certainly is, and this for many reasons.
Our task may be the easier if we state some of those reasons at
the outset.
To say that Domesday Book is no collection of laws or
treatise on law would be needless. Very seldom does it state any
rules in general terms, and when it does so we shill usually find
cause for believing that this rule is itself an exception, a
local custom, a provincial privilege. Thus, if we are to come by
general rules, we must obtain them inductively by a comparison of
many thousand particular instances. But further, Domesday Book is
no register of title, no register of all those rights and facts
which constitute the system of landholdership. One great purpose
seems to mould both its form and its substance; it is a
geld-book.
When Duke William became king of the English, he found (so he
might well think) among the most valuable of his newly acquired
regalia a right to levy a land-tax under the name of geld or
danegeld. A detailed history of that tax cannot be written. It is
under the year 991 that our English chronicle first mentions a
tribute paid to the Danes;(7*) £10,000 was then paid to them. In
994 the yet larger sum of £16,000(8*) was levied. In 1002 the
tribute had risen to £24,000,(9*) in 1007 to £30,000;(10*) in
1009 East Kent paid £3,000;(11*) £21,000 was raised in 1014;(12*)
in 1018 Cnut when newly crowned took £72,000 besides £11,000 paid
by the Londoners;(13*) in 1040 Harthacnut took £21,099 besides a
sum of £11,048 that was paid for thirty-two ships.(14*) With a
Dane upon the throne, this tribute seems to have become an
occasional war-tax. How often it was levied we cannot tell; but
that it was levied more than once by the Confessor is not
doubtful.(15*) We are told that he abolished it in or about the
year 1051, some eight or nine years after his accession, some
fifteen before his death. No sooner was William crowned than 'he
laid on men a geld exceeding stiff.' In the next year 'he set a
mickle geld' on the people. In the winter of 1083-4 he raised a
geld of 72 pence (6 Norman shillings) upon the hide. That this
tax was enormously heavy is plain. Taking one case with another,
it would seem that the hide was frequently supposed to be worth
about £1 a year and there were many hides in England that were
worth far less. But grievous as was the tax which immediately
preceded the making of the survey, we are not entitled to infer
that it was of unprecedented severity. It brought William but
£415 or thereabouts from Dorset and £510 or thereabouts from
Somerset.(16*) Worcestershire was deemed to contain about 1200
hides and therefore, even if none of its hides had been exempted,
it would have contributed but £360. If the huge sums mentioned by
the chronicler had really been exacted, and that too within the
memory of men who were yet living, William might well regard the
right to levy a geld as the most precious jewel in his English
crown. To secure a due and punctual payment of it was worth a
gigantic effort, a survey such as had never been made and a
record such as had never been penned since the grandest days of
the old Roman Empire. But further, the assessment of the geld
sadly needed reform. Owing to one cause and another, owing to
privileges and immunities that had been capriciously granted,
owing also, so we think, to a radically vicious method of
compiling the geldable areas of counties and hundreds, the old
assessment was full of anomalies and iniquities. Some estates
were over-rated, others were scandalously under-rated. That
William intended to correct the old assessment, or rather to
sweep it away and put a new assessment in its stead, seems highly
probable, though it has not been proved that either he or his
sons accomplished this feat.(17*) For this purpose, however,
materials were to be collected which would enable the royal
officers to decide what changes were necessary in order that all
England might be taxed in accordance with a just and uniform
plan. Concerning each estate they were to know the number of
geldable units ('hides' or 'carucates') for which it had answered
in King Edward's day, they were to know the number of plough oxen
that there were upon it, they were to know its true annual value,
they were to know whether that value had been rising or falling
during the past twenty years. Domesday Book has well been called
a rate book, and the task of spelling out a land law from the
particulars that it states is not unlike the task that would lie
before any one who endeavoured to construct our modern law of
real property out of rate books, income tax returns and similar
materials. All the lands, all the land-holders of England may be
brought before us, but we are told only of such facts, such
rights, such legal relationships as bear on the actual or
potential payment of geld. True, that some minor purposes may be
achieved by the king's commissioners, though the quest for geld
is their one main object. About the rents and renders due from
his own demesne manors the king may thus obtain some valuable
information. Also he may learn, as it were by the way, whether
any of his barons or other men have presumed to occupy, to
'invade,' lands which he has reserved for himself. Again, if
several persons are in dispute about a tract of ground, the
contest may be appeased by the testimony of shire and hundred, or
may be reserved for the king's audience; at any rate the
existence of an outstanding claim may be recorded by the royal
commissioners. Here and there the peculiar customs of a shire or
a borough will be stated, and incidentally the services that
certain tenants owe to their lords may be noticed. But all this
is done sporadically and unsystematically. Our record is no
register of title, it is no feodary, it is no custumal, it is no
rent roll; it is a tax book, a geld book.
We say this, not by way of vain complaint against its
meagreness, but because in our belief a care for geld and for all
that concerns the assessment and payment of geld colours far more
deeply than commentators have usually supposed the information
that is given to us about other matters. We should not be
surprised if definitions and distinctions which at first sight
have little enough to do with fiscal arrangements, for example
the definition of a manor and the distinction between a villein
and a 'free man', involved references to the apportionment and
the levy of the land-tax. Often enough it happens that legal
ideas of a very general kind are defined by fiscal rules; for
example, our modern English idea of 'occupation' has become so
much part and parcel of a system of assessment that lawyers are
always ready to argue that a certain man must be an 'occupier'
because such men as he are rated to the relief of the poor. It
seems then a fair supposition that any line that Domesday Book
draws systematically and sharply, whether it be between various
classes of men or between various classes of tenements, is
somehow or another connected with the main theme of that
book-geldability, actual or potential.
Since we have mentioned the stories told by the chronicler
about the tribute paid to the Danes, we may make a comment upon
them which will become of importance hereafter. Those stories
look true, and they seem to be accepted by modern historians. Had
we been told just once that some large number of pounds, for
example £60,000, was levied, or had the same round sum been
repeated in year after year, we might well have said that such
figures deserved no attention, and that by £60,000 our annalist
merely meant a big sum of money. But, as will have been seen, he
varies his figures from year to year and is not always content
with a round number; he speaks of £21,099 and of £11,048.(18*) We
can hardly therefore treat his statements as mere loose talk and
are reluctantly driven to suppose that they are true or near the
truth. If this be so, then, unless some discovery has yet to be
made in the history of money, no word but 'appalling' will
adequately describe the taxation of which he speaks. We know
pretty accurately the amount of money that became due when Henry
I or Henry II imposed a danegeld of two shillings on the hide.
The following table constructed from the pipe rolls will show the
sum charged against each county. We arrange the shires in the
order of their indebtedness, for a few of the many caprices of
the allotment will thus be visible, and our table may be of use
to us in other contexts.(18*)
Approximate Charge of a Danegeld of Two Shillings on the Hide in
the Middle of the Twelfth Century
£
Wiltshire 389
Norfolk 330
Somerset 278
Lincoln 266
Dorset 248
Oxford 242
Essex 236
Suffolk 235
Sussex 210
Bucks 205
Berks 202
Gloucester 190
S. Hants 180
Surrey 177
York 160
Warwick 129
N. Hants. 120
Salop 118
Cambridge 114
Derby & Nottingham 110
Hertford 110
Bedford 110
Kent 105
Devon 104
Worcester 101
Leicester 100
Hereford 94
Middlesex 85
Huntingdon 71
Stafford 44
Cornwall 23
Rutland 12
Northumberland 100
Cheshire(20*) 0
Total 5198
Now be it understood that these figures do not show the
amount of money that Henry I and Henry II could obtain by a
danegeld. They had to take much less. When it was last levied,
the tax was not bringing in £3500, so many were the churches and
great folk who had obtained temporary or permanent exemptions
from it. We will cite Leicestershire for example. The total of
the geld charged upon it was almost exactly or quite exactly
£100. On the second roll of Henry II's reign we find that £25 7s.
6d. have been paid into the treasury, that £22 8s. 3d. have been
'pardoned' to magnates and templars, that £51 8s. 2d. are written
off in respect of waste, and that 16s. 0d. are still due. On the
eighth roll the account shows that £62 12s. 7d. have been paid
and that £37 6s. 9d. have been 'pardoned.' No, what our table
displays is the amount that would be raised if all exemptions
were disregarded and no penny forborne. And now let us turn back
to the chronicle and (not to take an extreme example) read of
£30,000 being raised. Unless we are prepared to bring against the
fathers of English history a charge of repeated, wanton and
circumstantial lying, we shall think of the danegeld of
AEthelred's reign and of Cnut's as of an impost so heavy that it
was fully capable of transmuting a whole nation. Therefore the
lines that are drawn by the incidence of this tribute will be
deep and permanent; but still we must remember that primarily
they will be fiscal lines.
Then again, we ought not to look to Domesday Book for a
settled and stable scheme of technical terms. Such a scheme could
not be established in a brief twenty years. About one half of the
technical terms that meet us, about one half of the terms which,
as we think, ought to be precisely defined, are, we may say,
English terms. They are ancient English words, or they are words
brought hither by the Danes, or they are Latin words which have
long been in use in England and have acquired special meanings in
relation to English affairs. On the other hand, about half the
technical terms are French. Some of them are old Latin words
which have acquired special meanings in France, some are Romance
words newly coined in France, some are Teutonic words which tell
of the Frankish conquest of Gaul. In the one great class we place
scira, hundredum, wapentac, hida, berewica, inland, haga, soka,
saka, geldum, gablum, Scotum, heregeat, gersuma, thegnus,
sochemannus, burus, coscet; in the other comitatus, carucata,
virgata, bovata, arpentum, manerium, feudum, alodium, homagium,
relevium, baro, vicecomes, vavassor, villanus, bordarius,
colibertus, hospes. It is not in twenty years that a settled and
stable scheme can be formed out of such elements as these. And
often enough it is very difficult for us to give just the right
meaning to some simple Latin word. If we translate miles by
soldier or warrior, this may be too indefinite; if we translate
it by knight, this may be too definite, and yet leave open the
question whether we are comparing the miles of 1086 with the
cniht of unconquered England or with the knight of the thirteenth
century. If we render vicecomes by sheriff we are making our
sheriff too little of a vicomte. When comes is before us we have
to choose between giving Britanny an earl, giving Chester a
count, or offending some of our comites by invidious
distinctions. Time will show what these words shall mean. Some
will perish in the struggle for existence; others have long and
adventurous careers before them. At present two sets of terms are
rudely intermixed; the time when they will grow into an organic
whole is but beginning.
To this we must add that, unless we have mistaken the general
drift of legal history, the law implied in Domesday Book ought to
be for us very difficult law, far more difficult than the law of
the thirteenth century, for the thirteenth century is nearer to
us than is the eleventh. The grown man will find it easier to
think the thoughts of the school-boy than to think the thoughts
of the baby. And yet the doctrine that our remote forefathers
being simple folk had simple law dies hard. Too often we allow
ourselves to suppose that, could we but get back to the
beginning, we should find that all was intelligible and should
then be able to watch the process whereby simple ideas were
smothered under subtleties and technicalities. But it is not so.
Simplicity is the outcome of technical subtlety; it is the goal
not the starting point. As we go backwards the familiar outlines
become blurred; the ideas become fluid, and instead of the simple
we find the indefinite. But difficult though our task may be, we
must turn to it.
NOTES:
1. Inquisitio Comitatus Cantabrigiae, ed. N. E. Hamilton. When,
as sometimes happens, the figures in this record differ from
those given in Domesday Book, the latter seem to be in general to
more correct, for the arithmetic is better. Also it seems plain
that the compilers of the Domesday had, even for districts
comprised in the Inquisitio, other materials besides those that
the Inquisitio contains. For example, that document says nothing
of some of the royal manors. [Since this note was written, Mr.
Round, Feudal England, pp. 10 ff. has published the same result
after an elaborate investigation.]
2. This is printed in D. B. vol. iv. and given by Hamilton at the
end of his Inq. Com. Cantab. As to the manner in which it was
compiled see Round, Feudal England, 133 ff.
3. The Exon Domesday is printed in D. B. vol. iv.
4. Round, Domesday Studies, i. 91: 'I am tempted to believe that
these geld rolls in the form in which we now have them were
compiled at Winchester after the close of Easter 1084, by the
body which was the germ of the future Exchequer.'
5. Printed by Ellis, Introduction to Domesday, i. 184.
6. Round, Feudal England, 147.
7. Earle, Two Chronicles, 130-1.
8. Ibid. 132-3.
9. Ibid. 137.
10. Ibid. 141.
11. Ibid. 142.
12. Ibid. 151.
13. Ibid. 160-1.
14. Ibid. 167.
15. There is a valuable paper on this subject, A Short Account of
Danegeld [by P. C. Webb] published in 1756.
16. D. B. iv. 26, 489.
17. In 1194 the tax for Richard's ransom seems, at least in
Wiltshire, to have been distributed in the main according to the
assessment that prevailed in 1084; Rolls of the King's Court
(Pipe Roll Soc.) i. Introduction, p. xxiv.
18. The statement in AEthelred, ii. 7 (Schmid, p. 209) as to a
payment of £22,000 is in a general way corroborative of the
chronicler's large figures.
19. The figures will be given more accurately on a later page.
20 Cheshire pays no geld to the king. This loss is compensated by
a sum which is sometimes exacted from Northumberland.
1. PLAN OF THE SURVEY
England was already mapped out into counties, hundreds or
wapentakes and vills. Trithings or ridings appear in Yorkshire
and Lincolnshire, lathes in Kent, rapes in Sussex, while leets
appear, at least sporadically in Norfolk.(1*) These provincial
peculiarities we must pass by, nor will we pause to comment at
any length on the changes in the boundaries of counties and of
hundreds that have taken place since the date of the survey.
Though these changes have been many and some few of them have
been large,(2*) we may still say that as a general rule the
political geography of England was already stereotyped. And we
see that already there are many curious anomalies, 'detached
portions' of counties, discrete hundreds, places that are
extra-hundredal,(3*) places that for one purpose are in one
county and for another purpose in another county.(4*) We see also
that proprietary rights have already been making sport of
arrangements which in our eyes should be fixed by public law.
Earls, sheriffs and others have enjoyed a marvellous power of
taking a tract of land out of one district and placing it, or
'making it lie' in another district.(5*) Land is constantly
spoken of as though it were the most portable of things; it can
easily be taken from one vill or hundred and be added to or
placed in or caused to lie in another vill or hundred. This
'notional movability' of land, if we may use such a term, will
become of importance to us when we are studying the formation of
manors.
For the present, however, we are concerned with the general
truth that England is divided into counties, hundreds or
wapentakes and vills. This is the geographical basis of the
survey. That basis, however, is hidden from us by the form of our
record. The plan adopted by those who fashioned Domesday Book out
of the returns provided for them by the king's commissioners is a
curious, compromising plan. We may say that in part it is
geographical, while in part it is feudal or proprietary. It takes
each county separately and thus far it is geographical; but
within the boundaries of each county it arranges the lands under
the names of the tenants in chief who hold them. Thus all the
lands in Cambridgeshire of which Count Alan is tenant in chief
are brought together, no matter that they lie scattered about in
various hundreds. Therefore it is necessary for us to understand
that the original returns reported by the surveyors did not reach
the royal treasury in this form. At least as regards the county
of Cambridge, we can be certain of this. The hundreds were taken
one by one; they were taken in a geographical order, and not
until the justices had learned all that was to be known of
Staplehow hundred did they call upon the jurors of Cheveley
hundred for their verdict. That such was their procedure we might
have guessed even had we not been fortunate enough to have a copy
of the Cambridgeshire verdicts; for, though the commissioners
seem to have held but one moot for each shire, still it is plain
that each hundred was represented by a separate set of
jurors.(6*) But from these Cambridgeshire verdicts we learn what
otherwise we could hardly have known. Within each hundred the
survey was made by vills.(7*) If we suppose the commissioners
charging the jurors we must represent them as saying, not 'Tell
us what tenants in chief have lands in your hundred and how much
each of them holds,' but 'Tell us about each vill in your
hundred, who holds land in it.' Thus, for example, the men of the
Armingford hundred are called up. They, make a separate report
about each vill in it. They begin by stating that the vill is
rated at a certain number of hides and then they proceed to
distribute those hides among the tenants in chief. Thus, for
example, they say that Abington was rated at 5 hides, and that
those 5 hides are distributed thus:(8*)
hides virgates
Hugh Pincerna holds of the bishop of
Winchester 2 1/2 1/2
The king 1/2
Ralph and Robert hold of Hardouin de
Eschalers 1 1 1/2
Earl Roger 1
Picot the sheriff 1/2
Alwin Hamelecoc the bedel holds of the king 1/2
5 0
Now in Domesday Book we must look to several different pages
to get this information about the vill of Abington, -- to one
page for Earl Roger's land, to another page for Picot's land, and
we may easily miss the important fact that this vill of Abington
has been rated as a whole at the neat, round figure of 5 hides.
And then we see that the whole hundred of Armingford has been
rated at the neat, round figure of 100 hides, and has consisted
of six vills rated at 10 hides apiece and eight vills rated at 5
hides apiece.(9*) Thus we are brought to look upon the vill as a
unit in a system of assessment. All this is concealed from us by
the form of Domesday Book.
When that book mentions the name of a place, when it says
that Roger holds Sutton or that Ralph holds three hides in
Norton, we regard that name as the name of a vill; it may or may
not be also the name of a manor. Speaking very generally we may
say that the place so named will in after times be known as a
vill and in our own day will be a civil parish. No doubt in some
parts of the country new vills have been created since the
Conqueror's time. Some names that occur in our record fail to
obtain a permanent place on the roll of English vills, become the
names of hamlets or disappear altogether; on the other hand, new
names come to the front. Of course we dare not say dogmatically
that all the names mentioned in Domesday Book were the names of
vills; very possibly (if this distinction was already known) some
of them were the names of hamlets; nor, again, do we imply that
the villa of 1086 had much organization; but a place that is
mentioned in Domesday Book will probably be recognized as a vill
in the thirteenth, a civil parish in the nineteenth century. Let
us take Cambridgeshire by way of example. Excluding the Isle of
Ely, we find that the political geography of the Conqueror's
reign has endured until our own time. The boundaries of the
hundreds lie almost where they lay, the number of vills has
hardly been increased or diminished. The chief changes amount to
this: -- A small tract on the east side of the county containing
Exning and Bellingham has been made over to Suffolk; four other
names contained in Domesday no longer stand for parishes, while
the names of five of our modern parishes -- one of them is the
significant name of Newton -- are not found there.(10*) But about
a hundred and ten vills that were vills in 1086 are vills or
civil parishes at the present day, and in all probability they
then had approximately the same boundaries that they have now.
This may be a somewhat too favourable example of permanence
and continuity. Of all counties Cambridgeshire is the one whose
ancient geography can be the most easily examined; but wherever
we have looked we have come to the conclusion that the
distribution of England into vills is in the main as old as the
Norman conquest.(11*) Two causes of difficulty may be noticed,
for they are of some interest. Owing to what we have called the
'notional movability' of land, we never can be quite sure that
when certain hides or acres are said to be in or lie in a certain
place they are really and physically in that place. They are
really in one village, but they are spoken of as belonging to
another village, because their occupants pay their geld or do
their services in the latter. Manorial and fiscal geography
interferes with physical and villar geography. We have lately
seen how land rated at five hides was comprised, as a matter of
fact, in the vill of Abington; but of those five hides, one
virgate 'lay in' Shingay, a half-hide 'lay in' Litlington while a
half-virgate 'lay and had always lain' in Morden.(12*) This, if
we mistake not, leads in some cases to an omission of the names
of small vills. A great lord has a compact estate, perhaps the
whole of one of the small southern hundreds. He treats it as a
whole, and all the land that he has there will be ascribed to
some considerable village in which he has his hall. We should be
rash in supposing that there were no other villages on this land.
For example, in Surrey there is now-a-days a hundred called
Farnham which comprises the parish of Farnham, the parish of
Frensham and some other villages. If we mistake not, all that
Domesday Book has to say of the whole of this territory is that
the Bishop of Winchester holds Farnham, that it has been rated at
60 hides, that it has been worth the large sum of £65 a year and
that there are so many tenants upon it.(12*) We certainly must
not draw the inference that there was but one vill in this tract.
If the bishop is tenant in chief of the whole hundred and has
become responsible for all the geld that is levied therefrom,
there is no great reason why the surveyors should trouble
themselves about the vills. Thus the simple Episcopus tenet
Ferneham may dispose of some 25,000 acres of land. So the same
bishop has an estate at Chilcombe in Hampshire; but clearly the
name Ciltecumbe covers a wide territory for there are no less
than nine churches upon it.(14*) We never can be very certain
about the boundaries of these large and compact estates.
A second cause of difficulty lies in the fact that in
comparatively modern times, from the twelfth century onwards, two
or three contiguous villages will often bear the same name and be
distinguished only by what we may call their surnames -- thus
Guilden Morden and Steeple Morden, Stratfield Saye, Stratfield
Turgis, Stratfield Mortimer, Tolleshunt Knights, Tolleshunt
Major, Tolleshunt Darcy. Such cases are common; in some districts
they are hardly exceptional. Doubtless they point to a time when
a single village by some process of colonization or subdivision
become two villages. Now Domesday Book seldom enables us to say
for certain whether the change has already taken place. In a few
instances it marks off the little village from the great village
of the same name.(15*) In some other instances it will speak, for
example, of Mordune and Mordune Alia, of Emingeforde and
Emingeforde Alia, or the like, thus showing both that the change
has taken place, and also that it is so recent that it is
recognized only by very clumsy terms. In Cambridgeshire, since we
have the original verdicts, we can see that the two Mordens are
already distinct; the one is rated at ten hides, the other at
five.(16*) On the other hand, we can see that our Great and
Little Shelford are rated as one vill of twenty hides,(17*) our
Castle Camps and Shudy Camps as one vill of five hides.(18*)
Elsewhere we are left to guess whether the fission is complete,
and the surnames that many of our vills ultimately acquire, the
names of families which rose to greatness in the twelfth and
thirteenth centuries, will often suggest that the surveyors saw
but one vill where we see two.(19*) However, the broad truth
stands out that England was divided into vills and that in
general the vill of Domesday Book is still a vill in after
days.(20*)
The 'vill' or 'town' of the later middle ages was, like the
'civil parish' of our own day, a tract of land with some houses
on it, and this tract was a unit in the national system of police
and finance.(21*) But we are not entitled to make for ourselves
any one typical picture of the English vill. We are learning from
the ordnance map (that marvellous palimpsest, which under Dr
Meitzen's guidance we are beginning to decipher) that in all
probability we must keep at least two types before our minds. On
the one hand, there is what we might call the true village or the
nucleated village. In the purest form of this type there is one
and only one cluster of houses. It is a fairly large cluster; it
stands in the midst of its fields, of its territory, and until
lately a considerable part of its territory will probably have
consisted of spacious 'common fields.' In a country in which
there are villages of this type the parish boundaries seem almost
to draw themselves.(22*) On the other hand, we may easily find a
country in which there are few villages of this character. The
houses which lie within the boundary of the parish are scattered
about in small clusters; here two or three, there three or four.
These clusters often have names of their own, and it seems a mere
chance that the name borne by one of them should be also the name
of the whole parish or vill.(23*) We see no traces of very large
fields. On the face of the map there is no reason why a
particular group of cottages should be reckoned to belong to this
parish rather than to the next. As our eyes grow accustomed to
the work we may arrive at some extremely, important conclusions
such as those which Meitzen has suggested. The outlines of our
nucleated villages may have been drawn for us by Germanic
settlers, whereas in the land of hamlets and scattered steads old
Celtic arrangements may never have been thoroughly effaced.
Towards theories of this kind we are slowly winning our way. In
the meantime let us remember that a villa of Domesday Book may
correspond to one of at least two very different models or may be
intermediate between various types. It may be a fairly large and
agrarianly organic unit, or it may be a group of small agrarian
units which are being held together in one whole merely, by an
external force, by police law and fiscal law.(24*)
Two little fragments of 'the original one-inch ordnance map'
will be more eloquent than would be many paragraphs of written
discourse. The one pictures a district on the border between
Oxfordshire and Berkshire cut by the Thames and the main line of
the Great Western Railway; the other a district on the border
between Devon and Somerset, north of Collumpton and south of
Wiveliscombe. Neither is an extreme example. True villages we may
easily find. Cambridgeshire, for instance, would have afforded
some beautiful specimens, for many of the 'open fields' were
still open when the ordnance map of that county was made. But
throughout large tracts of England, even though there has been an
'inclosure' and there are no longer any open fields, our map
often shows a land of villages. When it does so and the district
that it portrays is a purely agricultural district, we may
generally assume without going far wrong that the villages are
ancient, for during at least the last three centuries the
predominant current in our agrarian history has set against the
formation of villages and towards the distribution of scattered
homesteads. To find the purest specimens of a land of hamlets we
ought to go to Wales or to Cornwall or to other parts of 'the
Celtic fringe'; very fair examples might be found throughout the
west of England. Also we may perhaps find hamlets rather than
villages wherever there have been within the historic period
large tracts of forest land. Very often, again, the parish or
township looks on our map like a hybrid. We seem to see a village
with satellitic hamlets. Much more remains to be done before we
shall be able to construe the testimony of our fields and walls
and hedges, but at least two types of vill must be in our eyes
when we are reading Domesday Book.(25*)
To say that the villa of Domesday Book is in general the vill
of the thirteenth century and the civil parish of the nineteenth
is to say that the areal extent of the villa varied widely from
case to case. More important is it for us to observe that the
number of inhabitants of the villa varied widely from case to
case. The error into which we are most likely to fall will be
that of making our vill too populous. Some vills, especially some
royal vills, are populous enough; a few contain a hundred
households; but the average township is certainly much smaller
than this.(26*) Before we give any figures, it should first be
observed that Domesday Book never enables us to count heads. It
states the number of the tenants of various classes, sochemanni,
villani, bordarii, and the like, and leaves us to suppose that
each of these persons is, or may be, the head of a household. It
also states how many servi there are. Whether we ought to suppose
that only the heads of servile households are reckoned, or
whether we ought to think of the servi as having no households
but as living within the lord's gates and being enumerated, men,
women and able-bodied children, by the head -- this is a
difficult question. Still we may reach some results which will
enable us to compare township with township. By way of fair
sample we may take the Armingford hundred of Cambridgeshire, and
all persons who are above the rank of servi we will include under
the term 'the non-servile population'.(27*)
Armingford Hundred
Non-servile
population Servi Total
Abingdon 19 0 19
Bissingbourn 35 3 38
Clapton 19 0 19
Croydon 29 0 29
Hatley 18 3 21
Litlington 37 6 43
Melbourn 62 1 63
Meldreth 44 7 51
Morden 43 11 54
Morden Alia 50 0 50
Shingay 18 0 18
Tadlow 27 4 31
Wendy 12 4 16
Whaddon 44 6 50
Total 457 45 502
Here in fourteen vills we have an average of thirty-two
non-servile households for every vill. Now even in our own day a
parish with thirty-two houses, though small, is not extremely
small. But we should form a wrong picture of the England of the
eleventh century if we filled all parts of it with such vills as
these. We will take at random fourteen vills in Staffordshire
held by Earl Roger.(28*)
Non-servile
population Servi Total
Claverlege 45 0 45
Nordlege 9 0 9
Alvidelege 13 0 13
Halas 40 2 42
Chenistelei 11 0 11
Otne 7 1 8
Nortberie 20 1 21
Erlide 8 2 10
Gaitone 16 0 16
Cressvale 8 0 8
Dodintone 3 0 3
Modreshale 5 0 5
Almentone 8 0 8
Metford 7 1 8
Total 200 7 207
Here for fourteen vills we have an average of but fourteen
non-servile. households and the servi are so few that we may
neglect them. We will next look at a page in the survey of
Somersetshire which describes certain vills that have fallen to
the lot of the bishop of Coutances.(29*)
Here we have on the average but eleven non-servile households
for each village, and even if we suppose each servus to represent
a household, we have not fourteen households. Yet smaller vills
will be foUnd in Devonshire, many vills in which the total number
of the persons mentioned does not exceed ten and near half of
these are servi. In Cornwall the townships, if townships we ought
to call them, are yet smaller; often we can attribute no more
than five or six families to the vill even if we include the
servi.
Non-servile
population Servi Total
Winemeresham 8 3 11
Chetenore 3 1 4
Widicumbe 21 6 27
Harpetrev 10 2 12
Hotune 11 0 11
Lilebere 6 1 7
Wintreth 4 2 6
Aisecome 11 7 18
Clutone 22 1 23
Temesbare 7 3 10
Nortone 16 3 19
Cliveham 15 1 16
Ferenberge 13 6 19
Cliveware 6 0 6
Total 153 36 189
Unless our calculations mislead us, the density of the
population in the average vill of a given county varies somewhat
directly with the density of the population in that county; at
all events we cannot say that where vills are populous, vills
will be few. As regards this matter no precise results are
attainable; our document is full of snares for arithmeticians.
Still if for a moment we have recourse to the crude method of
dividing the number of acres comprised in a modern county by the
number of the persons who are mentioned in the survey of that
county, the outcome of our calculation will be remarkable and
will point to some broad truth.(30*) For Suffolk the quotient is
46 or thereabouts; for Norfolk but little larger;(31*) for Essex
61, for Lincoln 67; for Bedford, Berkshire, Northampton,
Leicester, Middlesex, Oxford, Kent and Somerset it lies between
70 and 80, for Buckingham, Warwick, Sussex, Wiltshire and Dorset
it lies between 80 and 90; Devon, Gloucester, Worcester, Hereford
are thinly peopled, Cornwall, Stafford, Shropshire very thinly.
Some particular results that we should thus attain would be
delusive. Thus we should say that men were sparse in
Cambridgeshire, did we not remember that a large part of our
modern Cambridgeshire was then a sheet of water. Permanent
physical causes interfere with the operation of the general rule.
Thus Surrey, with its wide heaths, has, as we might expect, but
few men to the square mile. Derbyshire has many vills lying
waste; Yorkshire is so much wasted that it can give us no
valuable result; and again, Yorkshire and Cheshire were larger
than they are now, while Rutland and the adjacent counties had
not their present boundaries. For all this, however, we come to a
very general rule: -- the density of the population decreases as
we pass from east to west. With this we may connect another rule:
land is much more valuable in the east than it is in the west.
This matter is indeed hedged in by many thorny questions; still,
whatever hypothesis we may adopt as to the mode in which land was
valued, one general truth comes out pretty plainly, namely, that,
economic arrangements being what they were, it was far better to
have a team-land in Essex than to have an equal area of arable
land in Devon.
Between eastern and western England there were differences
visible to the natural eye. With these were connected unseen and
legal differences, partly as causes, partly as effects. But for
the moment let us dwell on the fact that many an English vill has
very few inhabitants. We are to speak hereafter of village
communities. Let us therefore reflect that a community of some
eight or ten householders is not likely to be a highly organized
entity. This is not all, for these eight or ten householders will
often belong to two, three or four different social and economic,
if not legal, classes. Some may be sokemen, some villani,
bordarii, cotarii, and besides them there will be a few servi. If
a vill consists, as in Devonshire often enough it will, of some
three villani, some four bordarii and some two servi, the
'township-moot,' if such a moot there be, will be a queer little
assembly; the manorial court, if such a court there be, will not
have much to do. These men cannot have many communal affairs;
there will be no great scope for dooms or for by-laws; they may
well take all their disputes into the hundred court, especially
in Devonshire where the hundreds are small. Thus of the visible
vill of the eleventh century and its material surroundings we may
form a wrong notion. Often enough in the west its common fields
(if common fields it had) were not wide fields; the men who had
shares therein were few and belonged to various classes. Thus of
two villages in Gloucestershire, Brookthorpe and Harescombe, all
that we can read is that in Brostrop there were two teams, one
villanus, three bordarii, four servi, while in Hersecome there
were two teams, two bordarii and five servi.(32*) Many a
Devonshire township can produce but two or three teams. Often
enough our 'village community' will be a heterogeneous little
group whose main capital consists of some 300 acres of arable
land and some 20 beasts of the plough.
On the other hand, we must be careful not to omit from our
view the rich and thickly populated shires or to imagine or to
speak as though we imagined that a general theory of English
history can neglect the East of England. If we leave
Lincolnshire, Norfolk and Suffolk out of account we are to all
appearance leaving out of account not much less than a quarter of
the whole nation.(33*) Let us make three groups of counties: (1)
a South-Western group containing Devon, Somerset, Dorset and
Wiltshire: (2) a Mid- Western group containing the shires of
Gloucester, Worcester, Hereford, Salop, Stafford and Warwick: (3)
an Eastern group containing Lincolnshire, Norfolk and Suffolk.
The first of these groups has the largest; the third the smallest
acreage. In Domesday Book, however, the figures which state their
population seem to be these:(34*) --
South-Western Group: 49,155
Mid-Western Group: 33,191
Eastern Group: 72,883
These figures are so emphatic that they may cause us for a
moment to doubt their value, and on details we must lay no
stress. But we have materials which enable us to check the
general effect. In 1297 Edward I levied a lay subsidy of a
ninth.(35*) The sums borne by our three groups of counties were
these: --
£
South-Western Group: 4,038
Mid-Western Group: 3,514
Eastern Group: 7,329
There is a curious resemblance between these two sets of
figures. Then in 1377 and 1381 returns were made for a
poll-tax.(36*) The number of polls returned in our three groups
were these: --
1377 1381
South-Western Group: 183,842 106,086
Mid-Western Group: 158,245 115,679
Eastern Group: 255,498 182,830
No doubt all inferences drawn from medieval statistics are
exceedingly precarious; but, unless a good many figures have
conspired to deceive us, Lincolnshire, Norfolk and Suffolk were
at the time of the Conquest and for three centuries afterwards
vastly richer and more populous than any tract of equal area in
the West.
Another distinction between the eastern counties and the rest
of England is apparent. In many shires we shall find that the
name of each vill is mentioned once and no more. This is so
because the land of each vill belongs in its entirety to some one
tenant in chief. We may go further: we may say, though at present
in an untechnical sense, that each vill is a manor. Such is the
general rule, though there will be exceptions to it. On the other
hand, in the eastern counties this rule will become the
exception. For example, of the fourteen vills in the Armingford
hundred of Cambridgeshire there is but one of which it is true
that the whole of its land is held by a single tenant in chief.
In this county it is common to find that three or four Norman
lords hold land in the same vill. This seems true not only of
Cambridgeshire, but also of Essex, Suffolk, Norfolk, Lincoln,
Nottingham, Derby, and some parts of Yorkshire. Even in other
districts of England the rule that each vill has a single lord is
by no means unbroken in the Conqueror's day and we can see that
there were many exceptions to it in the Confessor's. A careful
examination of all England vill by vill would perhaps show that
the contrast which we are noting is neither so sharp nor so
ancient as at first sight it seems to be: nevertheless it exists.
A better known contrast there is. The eastern counties are
the home of liberty.(37*) We may divide the tillers of the soil
into five great classes; these in order of dignity and freedom
are (1) liberi homines, (2) sochemanni, (3) villani, (4)
bordarii, cotarii, etc., (5) servi. The two first of these
classes are to be found in large numbers only in Norfolk,
Suffolk, Lincolnshire, Nottinghamshire, Leicestershire and
Northamptonshire. We shall hereafter see that Cambridgeshire also
has been full of sokemen, though since the Conquest they have
fallen from their high estate. On the other hand, the number of
servi increases pretty steadily as we cross the country from east
to west. It reaches its maximum in Cornwall and Gloucestershire;
it is very low in Norfolk, Suffolk, Derby, Leicester, Middlesex,
Sussex; it descends to zero in Yorkshire and Lincolnshire. This
descent to zero may fairly warn us that the terms with which we
are dealing may not bear precisely the same meaning in all parts
of England, or that a small class is apt to be reckoned as
forming part of a larger class. But still it is clear enough that
some of these terms are used with care and express real and
important distinctions.
Of this we are assured by a document which seems to reproduce
the wording of the instructions which defined the duty of at
least one party of royal commissioners.(38*) We are about to
speak of the mode in which the occupants of the soil are
classified by Domesday Book, and therefore this document deserves
our best attention. It runs thus: -- The King's barons inquired
by the oath of the sheriff of the shire and of all the barons and
of their Frenchmen and of the whole hundred, the priest, reeve
and six villani of every vill, how the mansion (mansio) is
called, who held it in the time of King Edward, who holds it now,
how many hides, how many plough-teams on the demesne, how many
plough teams of the men, how many villani, how many cotarii, how
many servi, how many liberi homines, how many sochemanni, how
much wood, how much meadow, how much pasture, how many mills, how
many fisheries, how much has been taken away therefrom, how much
added thereto, and how much there is now, how much each liber
homo and sochemannus had and has: -- All this thrice over, to wit
as regards the time of King Edward, the time when King William
gave it, and the present time, and whether more can be had thence
than is had now.(39*)
Five classes of men are mentioned and they are mentioned in
an order that is extremely curious: -- villani, cotarii, servi,
liberi homines, sochemanni. It descends three steps, then it
leaps from the very bottom of the scale to the very top and
thence it descends one step. A parody of it might speak of the
rural population of modern England as consisting of large
farmers, small farmers, cottagers, great landlords, small
landlords. But a little consideration will convince us that
beneath this apparent caprice there lies some legal principle. We
shall observe that these five species of tenants are grouped into
two genera. The king wants to know how much each liber homo, how
much each sochemannus holds; he does not want to know how much
each villanus, each cotarius, each servus holds. Connecting this
with the main object of the whole survey, we shall probably be
brought to the guess that between the sokeman and the villein
there is some broad distinction which concerns the king as the
recipient of geld. May it not be this: -- the villein's lord is
answerable for the geld due from the land that the villein holds,
the sokeman's lord is not answerable, at least he is not
answerable as principal debtor for the geld due from the land
that the sokeman holds? If this be so, the order in which the
five classes of men are mentioned will not seem unnatural. It
proceeds outwards from the lord and his mansio. First it mentions
the persons seated on land for the geld of which he is
responsible, and them it arranges in an 'order of merit.' Then it
turns to persons who, though in some way or another connected
with the lord and his mansio, are themselves tax-payers, and
concerning them the commissioners are to inquire how much each of
them holds. Of course we cannot say that this theory is proved by
the statement that lies before us; but it is suggested by that
statement and may for a while serve us as a working hypothesis.
If this theory be sound, then we have here a distinction of the
utmost importance. For one mighty purpose, the purpose that is
uppermost in King William's mind, the villanus is not a
landowner, his lord is the landowner; on the other hand, the
sochemannus is a landowner, and is taxed as such. We are not
saying that this is a purely fiscal distinction. In legal logic
the lord's liability for the geld that is apportioned on the land
occupied by his villeins may be rather an effect than a cause. A
lawyer might argue that the lord must pay because the occupier is
his villanus, not that the occupier is a villanus because the
lord pays. And yet, as we may often see in legal history, there
will be action and reaction between cause and effect. The geld is
no trifle. Levied at that rate of six shillings on the hide at
which King William has just now levied it, it is a momentous
force capable of depressing and displacing whole classes of men.
In 1086 this tax is so much in everybody's mind that any
distinction as to its incidence will cut deeply into the body of
the law.
Now this classification of men we will take as the starting
point for our enterprise. If we could define the liber homo,
sochemannus, villanus, cotarius, servus, we should have solved
some of the great legal problems of Domesday Book, for by the way
we should have had to define two other difficult terms, namely
manerium and soca. It would then remain that we should say
something of the higher strata of society, of earls and sheriffs,
of barons, knights, thegns and their tenures, of such terms as
alodium and feudum, of the general theory of landownership or
landholdership. We will begin with the lowest order of men, with
the servi, and thence work our way upwards. But our course cannot
be straightforward. There are so many terms to be explained that
sometimes we shall be compelled to leave a question but partially
answered while we are endeavouring to find a partial answer for
some yet more difficult question.
NOTES:
1. D. B. ii. 109 b.: 'Hundret de Grenehou 14 letis.' 1b. 212 b.
'Hundret et Dim. de Clakelosa de 10 leitis.' Round, Feudal
England, 101.
2. Some of them are mentioned by Ellis, Introduction, i. 34-9.
3. D. B. i. 184 b: 'Haec terra non geldat nec consuetudinem dat
nec in aliquo hundredo iacet': i. 157 'Haec terra nunquam
geldavit nec alicui hundredo pertinet nec pertinuit': i. 357 b
'Hae duae carucatae non siunt in numero alicuius hundredi neque
habent pares in Lincolescyra.'
4. D. B. i. 207 b: 'Jacet in Bedefordscira set geldum dat in
Huntedonscire'; i. 61 b 'Jacet et appreciata est in Gratentun
quod est in Oxenefordscire et tamen dat scotum in Berchescire';
i. 132 b, the manor of Weston 'lies in, Hitchin which is in
Hertfordshirc, but its wara 'lies in' Bedfordshire, i.e. it pays
geld, it 'defends itself' in the latter county; i. 189 b, the
wara of a certain hide 'lies in' Hinxton which is in
Cambridgeshire, but the land belongs to the manor of Chesterford
and therefore is valued in Essex. D. B. i. 178: five hides 'geld
and plead' in Worcestershire, but pay their farm in
Herefordshire.
5. D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit
terrae suae in Glowecestrescire'; i. 209 b 'foris misit de
hundredo ubi se defendebat, T. R. E.'; i. 50 'et misit foras
comitatum et misit in Wiltesire.' See also Ellis, i. 36.
6. See Round, Feudal England, p. 118. Mr Round seems to think
that the commissioners made a circuit through the hundreds. I
doubt they did more than their successors the justices in eyre
were wont to do, that is, they held in the shire-town a moot
which was attended by (1) the magnates of the shire who spoke for
the shire, (2) a jury from every hundred, (3) a deputation of
villani from every township. See the Yorkshire and Lincolnshire
Clamores (i. 375) where we may find successive entries beginning
with (a) Scyra testatur, (b) Westreding testatur, (c) Testatur
wapentac. Strikingly similar entries are found on the eyre rolls.
As Sir F. Pollock (Eng. Hist. Rev. xi. 213) remarks, it is
misleading to speak of the Domesday 'survey'; Domesday inquest
would be better.
7. See Round, Feudal England, p. 44.
8. Inquis. Com. Cantab. 60.
9. See the table in Round, Feudal England, p. 50. I had already
selected this beautiful specimen before Mr Round's book appeared.
He has given several others that are quite as neat.
10. Of course we take no account of urban parishes.
11. Eyton's laborious studies have made this plain as regards
some counties widely removed from each other; still, e.g. in his
book On Somerset, he has now and again to note that names which
appear in D. B. are obsolete.
12. Inq. Com. Cant. 60-1.
13. D. B. i. 31.
14. D. B. i. 41. We shall return to this matter hereafter.
15. A good many cases will be found in Essex and Suffolk.
16. Inq. Com. Cantab. 51, 53.
17. Ibid. 47.
18. Ibid. 29.
19. Maitland, Surnames of English Villages, Archaeological
Review, iv. 233.
20. We do not mean to imply that there were not wide stretches of
waste land which were regarded as being 'extra-villar,' or common
to several vills.
21. Hist. Eng. Law, i. 547.
22. This of course would not be true of cases in which the lands
of various villages were intermixed in one large tract of common
field. As to these 'discrete vills,' see Hist. Eng. Law, i. 549.
23. This name-giving cluster will usually contain the parish
church and so will enjoy a certain pre-eminence. But we are to
speak of a time when parish churches were novelties.
24. See Meitzen, Siedelung und Agrarwesen der Germanen,
especially ii, 119 ff.
25. When the hamlets bear names with such ancient suffixes as
-ton, -ham, -by, -worth, -wick, -thorpe, this of course is in
favour of their antiquity. On the other hand, if they are known
merely by family names such as Styles's, Nokes's, Johnson's or
the like, this, though not conclusive evidence of, is compatible
with, their modernity. Meitzen thinks that in Kent and along the
southern shore the German invaders founded but few villages. The
map does not convince me that this inference is correct.
26. When more than five-and-twenty team-lands or thereabouts are
ascribed to a single place, we shall generally find reason to
believe that what is being described is not a single vill. See
above, p. 36.
27. Inq. Com. Cant. 51 fol. In a few cases our figures will
involve a small element of conjecture.
28. D. B. i. 248. We have tried to avoid vills in which it is
certain or probable that some other tenant in chief had an
estate.
29. D. B. i. 88. We have tried to make sure that no tenant in
chief save the bishop had land in any of these vills, and this we
think fairly certain, except as regards Harptree and Norton.
There are now two Harptrees, East and West, and four or more
Nortons.
30. We take the figures from Ellis, Introduction, ii. 41 7 ff.
31. Very possibly this figure is too low. There is reason to
think that some the free men and sokemen of these counties get
counted twice or thrice over because they hold land under several
different lords. On the other hand Ellis (Introduction, ii. 491)
would argue that the figure is too high. But the words Alii ibi
tenent which occur at the end of numerous entries mean, we
believe, not that there are in this vill other unenumerated
tillers of the soil, but that the vill is divided between several
tenants in chief.
32. D. B. i. 162 b.
33. Ellis's figures are: England 283, 242: the three counties,
72,883.
34. We take these figures from Ellis.
35. Lay Subsidy, 25 Edw. 1. (Yorkshire Archaeological Society),
pp. xxxi-xxxv. Fractions of a pound are neglected.
36. Powell, The Rising in East Anglia, 120-3. The great decrease
between 1377 and 1381 in the number of persons taxed, we must not
try to explain.
37. See the serviceable maps in Seebohm, Village Community, 86.
But they seem to treat Yorkshire unfairly. It has 5.5 per cent of
sokemen.
38. This is found at the beginning of the Inquisitio Eliensis; D.
B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal England,
133 ff.
39. We must not hastily draw the inference that every party of
commissioners received the same set of instructions. Perhaps, for
example, carucates, not hides, were mentioned in the instructions
given to those commissioners who were to visit the carucated
counties. Perhaps the non-appearance of servi in Yorkshire and
Lincolnshire may be due to no deeper cause.
2. THE SERFS
The existence of some 25,000 serfs is recorded. In the
thirteenth century servus and villanus are, at least among
lawyers, equivalent words. The only unfree man is the
'serf-villein' and the lawyers are trying to subject him to the
curious principle that he is the lord's chattel but a free man in
relation to all but his lord.(1*) It is far otherwise in Domesday
Book. In entry after entry and county after county the servi are
kept well apart from the villani, bordarii, cotarii. Often they
are mentioned in quite another context to that in which the
villani are enumerated. As an instance we may take a manor in
Surrey;(2*) -- 'In demesne there are 5 teams and there are 25
villani and 6 bordarii with 14 teams. There is one mill of 2
shillings and one fishery and one church and 4 acres of meadow,
and wood for 150 pannage pigs, and 2 stone-quarries of 2
shillings and 2 nests of hawks in the wood and 10 servi.' Often
enough the servi are placed between two other sources of wealth,
the church and the mill. In some counties they seem to take
precedence over the villani; the common formula is 'In dominio
sunt a curucae et b servi et c villani et d bordarii cum e
carucis.' But this is delusive; the formula is bringing the servi
into connexion with the demesne teams and separating them from
the teams of the tenants. We must render it thus -- 'On the
demesne there are a teams and b servi; and there are c villani
and d bordarii with e teams.' Still we seem to see a gently
graduated scale of social classes, villani, bordarii, cotarii,
servi, and while the jurors of one county will arrange them in
one fashion, the jurors of another county may adopt a different
scheme. Thus in their classification of mankind the jurors will
sometimes lay great stress on the possession of plough oxen. In
Hertfordshire we read: -- 'There are 6 teams in demesne and 41
villani and 17 bordarii have 20 teams... there are 22 cotarii and
12 servi.(3*) -- 'The priest, 13 villani and 4 bordarii have 6
teams... there are two cotarii and 4 servi.'(4*) -- 'The priest
and 24 villani have 13 teams... there are 12 bordarii, 16 cotarii
and 11 servi.'(5*) A division is in this instance made between
the people who have oxen and the people who have none; villani
have oxen, cotarii and servi have none; sometimes the bordarii
stand above this line, sometimes below it.
Of the legal position of the servus Domesday Book tells us
little or nothing; but earlier and later documents oblige us to
think of him as a slave, one who in the main has no legal rights.
He is the theów of the Anglo-Saxon dooms, the servus of the
ecclesiastical canons. But though we do right in calling him a
slave, still we might well be mistaken were we to think of the
line which divides him from other men as being as sharp as the
line which a mature jurisprudence will draw between thing and
person. We may well doubt whether this principle -- 'The slave is
a thing, not a person' -- can be fully understood by a grossly
barbarous age. It implies the idea of a person, and in the world
of sense we find not persons but men.
Thus degrees of servility are possible. A class may stand, as
it were, half-way between the class of slaves and the class of
free men. The Kentish law of the seventh century as it appears in
the dooms of AEthelbert,(6*) like many of its continental
sisters, knows a class of men who perhaps are not free men and
yet are not slaves; it knows the laet as well as the theów. From
what race the Kentish laet has sprung, and how, when it comes to
details, the law will treat him -- these are obscure questions,
and the latter of them cannot be answered unless we apply to him
what is written about the laeti, liti and lidi of the continent.
He is thus far a person that he has a small wergild but possibly
he is bound to the soil. Only in AEthelbert's dooms do we read of
him. From later days, until Domesday Book breaks the silence, we
do not obtain any definite evidence of the existence of any class
of men who are not slaves but none the less are tied to the land.
Of men who are bound to do heavy labour services for their lords
we do hear, but we do not hear that if they run away they can be
captured and brought back. As we shall see by and by, Domesday
Book bears witness to the existence of a class of buri, burs,
coliberti, who seem to be distinctly superior to the servi, but
distinctly inferior to the villeins, bordiers and cottiers. It is
by no means impossible that they, without being slaves, are in a
very proper and intelligible sense unfree men, that they have
civil rights which they can assert in courts of law, but that
they are tied to the soil. The gulf between the seventh and the
eleventh centuries is too wide to allow of our connecting them
with the laet of AEthelbert's laws, but still our documents are
not exhaustive enough to justify us in denying that all along
there has been a class (though it can hardly have been a large
class) of men who could not quit their tenements and yet were no
slaves. As we shall see hereafter, liberty was in certain
contexts reckoned as a matter of degree; even the villanus, even
the sochemannus, was not for every purpose liber homo. When this
is so, the theów or servus is like to appear as the unfreest of
persons rather than as no person but a thing.
In the second place, we may guess that from a remote time
there has been in the condition of the theów a certain element of
praediality. The slaves have not been worked in gangs nor housed
in barracks.(7*) The servus has often been a servus casatus, he
has had a cottage or even a manse and yardland which de facto he
might call his own. There is here no legal limitation of his
master's power. Some slave trade there has been; but on the whole
it seems probable that the theów has been usually treated as
annexed to a tenement. The duties exacted of him from year to
year have remained constant. The consequence is that a free man
in return for a plot of land may well agree to do all that a
theów usually does and see in this no descent into slavery. Thus
the slave gets a chance of acquiring what will be as a matter of
fact a peculium. In the seventh century the church tried to turn
this matter of fact into matter of law. 'Non licet homini,' says
Theodore's Penitential, 'a servo tollere pecuniam, quam ipse
labore suo adquesierit.'(8*) We have no reason for thinking that
this effort was very strenuous or very successful, or that the
law of the eleventh century allowed the servus any proprietary
rights; and yet he might often be the occupier of land and of
chattels with which, so long as he did his customary services,
his lord would seldom meddle.
In the third place, we may believe that for some time past
police law and punitive law have been doing something to conceal,
if not to obliterate, the line which separates the slave from
other men. A mature jurisprudence may be able to hold fast the
fundamental principle that a slave is not a person but a thing,
while at the same time it both limits the master's power of
abusing his human chattel and guards against those dangers which
may arise from the existence of things which have wills, and
sometimes bad wills, of their own. But an immature jurisprudence
is incapable of this exploit. It begins to play fast and loose
with its elementary notions. It begins to punish the criminous
slave without being quite certain as to how far it is punishing
him and how far it is punishing his master. Confusion is easy,
for if the slave be punished by death or mutilation, his master
will suffer, and a pecuniary mulct exacted from the slave is
exacted from his master. Learned writers have come to the most
opposite opinions as to the extent to which the Anglo-Saxon dooms
by their distribution of penalties recognize the personality of
the theów. But this is not all. For a long time past the law has
had before it the difficult problem of dealing with crimes and
delicts committed by poor and economically dependent free men,
men who have no land of their own, who are here to-day and gone
to-morrow, 'men from whom no right can be had.' It has been
endeavouring to make the lords answerable to a certain extent for
the misdeeds of their free retainers. If a slave is charged with
a crime his master is bound to produce him in court. But the law
requires that the lord shall in very similar fashion produce his
free 'loaf eater,' his mainpast, nay, it has been endeavouring to
enforce the rule that every free man who has no land of his own
shall have a lord bound to produce him when he is accused. Also
it has been fostering the growth of private justice. The lord's
duty of producing his men, bond and free, has been becoming the
duty of holding a court in which his men, free and bond, will
answer for themselves. How far this process had gone in the days
of the Confessor is a question to which we shall return.(9*)
For all this, however, we may say with certainty that in the
eleventh century the servi were marked off from all other men by
definite legal lines. What is more, we may say that every man who
was not a theów was in some definite legal sense a free man. This
sharp contrast is put before us by the laws of Cnut as well as by
those of his predecessors. If a freeman works on a holiday, he
pays for it with his healsfang; if a theównian does the like, he
pays for it with his hide or his hide-geld.(10*) Equally sharp is
the same distinction in the Leges Henrici, and this too in
passages which, so far as we know, are not borrowed from
Anglo-Saxon documents. For many purposes 'aut servus aut liber
homo' is a perfect dilemma. There is no confusion whatever
between the villani and the servi. The villani are 'viles et
inopes personae' but clearly enough they are liberi homines. So
also in the Quadripartitus, the Latin translation of the ancient
dooms made in Henry I's reign, there is no confusion about this
matter; the theówman becomes a servus, while villanus is the
equivalent for ceorl. The Norman writers still tell how according
to the old law of the English the villanus might become a thegn
if he acquired five hides of land;(11*) at times they will put
before us villani and thaini or even villani and barones as an
exhaustive classification of free men.(12*)
Let us learn what may be learnt of the servus from the Leges
Henrici. Every man is either a liber homo or a servus.(13*) Free
men are either two-hundred-men or twelve-hundredmen; perhaps we
ought to add that there is also a class of six-hundred-men.(14*)
A serf becomes such either by birth or by some event, such as a
sale into slavery, that happens in his lifetime.(15*) Servile
blood is transmitted, from father to child; some lords hold that
it is also transmitted by mother to child.(16*) If a slave is to
be freed this should be done publicly, in court, or church or
market, and lance and helmet or other the arms of free men should
be given him, while he should give his lord thirty pence, that is
the price of his skin, as a sign that he is henceforth 'worthy of
his hide.' On the other hand, when a free man falls into slavery
then also there should be a public ceremony. He should put his
head between his lord's hands and should receive as the arms of
slavery some bill-hook or the like.(17*) Public ceremonies are
requisite, for the state is endangered by the uncertain condition
of accused criminals; the lords will assert at one moment that
their men are free and at the next moment that these same men are
slaves.(18*) The descent of a free man into slavery is treated as
no uncommon event; the slave may well have free kinsfolk.(19*)
But, to come to the fundamental rule, the villanus, the meanest
of free men, is a two-hundred-man, that is to say, if he be slain
the very substantial wergild of 200 Saxon shillings or £4 must be
paid to his kinsfolk,(20*) while a man-bót of 30 shillings is
paid to his lord.(21*) But if a servus be slain his kinsfolk
receive the comparatively trifling sum of 40 pence while the lord
gets the man-bót of 20 shillings.(22*) That the serf's kinsfolk
should receive a small sum need not surprise us. Germanic law has
never found it easy to carry the principle that the slave is a
chattel to extreme conclusions; but the payment seems trifling
and half contemptuous; at any rate the life of the villein is
worth the life of twenty-four serfs.(23*) Then again, it is by no
means certain that a lord cannot kill his serf with impunity.
'If,' says our text, 'a man slay his own serf, his is the sin and
his is the loss': -- we may interpret this to mean that he has
sinned but sinned against himself.(24*) Then again, for the evil
deeds of his slave the master is in some degree responsible. If
my slave be guilty of a petty theft not worthy of death, I am
bound to make restitution; if the crime be a capital one and he
be taken handhaving, then he must 'die like a free man.'(25*) If
my slave be guilty of homicide, my duty is to set him free and
hand him over to the kindred of the slain, but apparently I may
purchase his life by a sum of 40 shillings, a sum much less than
the wer of the slain man.(26*) We must not be too hard on the
owners of delinquent slaves. There are cases, for example, in
which, several slaves having committed a crime, one of them
chosen by lot must suffer for the sins of all.(27*) Our author is
borrowing from the laws of several different centuries and does
not arrive at any neat result; nor must we wonder at this, for
the problems presented to jurisprudence by the crimes and delicts
of slaves are very intricate. Then again, we have the rule that
if free men and serfs join in a crime, the whole guilt is to be
attributed to the free: he who joins with a slave in a theft has
no companion.(28*) On the whole, though the slave is likely to
have as a matter of fact a peculium of his own, a peculium out of
which he may be able to pay for his offences and even perhaps to
purchase his liberty,(29*) the servus of our Leges seems to be in
the main a rightless being. We look in vain for any trace of that
idea of the relativity of servitude which becomes the core of
Bracton's doctrine.(30*) At the same time we observe that many,
perhaps most, of the rules which mark the slavish condition of
the serf are ancient rules and rules that are becoming obsolete.
In the twelfth century the old system of wer and bót is already
vanishing, though an antiquarian lawyer may yet try to revivify
it. When it disappears altogether before the new law, which holds
every grave crime to be a felony, and punishes almost every
felony with death,(31*) many grand differences between the
villein and the serf will have perished. The gallows is a great
leveller.
If now we recur to the days of the Conquest, we cannot doubt
that the law knew a definite class of slaves, and marked them off
by many distinctions from the villani and cotarii, and even from
the coliberti. Sums that seem high were being paid for men whose
freedom was being purchased.(32*) At Lewes the toll paid for the
sale of an ox was a halfpenny; on the sale of a man it was
fourpence.(33*) In later documents we may sometimes see a
distinction well drawn. Thus in the Black Book of Peterborough,
compiled in 1127 or thereabouts, we may read how on one of his
manors the abbot has eight herdsmen (bovarii), how each of them
holds ten acres, has to do labour services and render loaves and
poultry. And then we read that each of them must pay one penny
for his head if he be a free man (liber homo), while he pays
nothing if he be a servus.(34*) This is a well-drawn distinction.
Of two men whose economic position is precisely the same, the one
may be free, the other a slave, and it is the free man, not the
slave, who has to pay a head-penny. Now when the Conqueror's
surveyors, or rather the jurors, call a man a servus they are, so
it seems to us, thinking rather of his legal status than of his
position in the economy of a manor. At any rate we ought to
observe that the economic stratification of society may cut the
legal stratification. We are accustomed perhaps to suppose that
while the villani have lands that are in some sense their own,
while they support themselves and their families by tilling those
lands, the servus has no land that is in any sense his own, but
is fed at his lord's board, is housed in his lord's court, and
spends all his time in the cultivation of his lord's demesne
lands. Such may have been the case in those parts of England
where we hear of but few servi; those few may have been inmates
of the lord's house and have had no plots of their own. But such
can hardly have been the case in the south-western counties; the
servi are too many to be menials. Indeed it would seem that these
servi sometimes had arable plots, and had oxen, which were to be
distinguished from the demesne oxen of their lords -- not indeed
as a matter of law, but as a matter of economic usage.(35*) It is
plain that the legal and the economic lines may intersect one
another; the menial who is fed by the lord and who must give his
whole time to the lord's work may be a free man; the slave may
have a cottage and oxen and a plot of arable land, and labour for
himself as well as labouring for his lord. Hence a perplexed and
uncertain terminology: -- the servus who has land and oxen may be
casually called a villanus,(36*) and we cannot be sure that no
one whom our record calls a servus has the wergild of a free man.
Nor can we be sure that the enumeration of the servi is always
governed by one consistent principle. In the shires of
Gloucester, Hereford and Worcester we read of numerous ancillae
-- in Worcestershire of 677 servi and 101 ancillae(37*) -- and
this may make us think that in this district all the able-bodied
serfs are enumerated, whether or no they have cottages to
themselves.(38*) We may strongly suspect that the king's
commissioners were not much interested in the line that separated
the villani from the servi, since the lord was as directly
answerable for the geld of any lands that were in the occupation
of his villeins as he was for the geld of those plots that were
tilled for him by his slaves. That there should have been never a
theów in all Yorkshire and Lincolnshire is hardly credible, and
yet we hear of no servi in those counties.
This being so, we encounter some difficulty if we would put
just the right interpretation on a remarkable fact that is
visible in Essex. The description of that county tells us not
only how many villani, bordarii and servi there are now, but also
how many there were in King Edward's day, and thus shows what
changes have taken place during the last twenty years. Now on
manor after manor the number of villeins and bordiers, if of them
we make one class, has increased, while the number of servi has
fallen. We take 100 entries (four batches of 25 apiece) and see
that the number of villani and bordarii has risen from 1486 to
1894, while the number of servi has fallen from 423 to 303. We
make another experiment with a hundred entries. This gives the
following result: --
1066 1086
Villani 1273 1247
Bordarii 810 1241
Servi 384 312
This decrease in the number of servi seems to be pretty
evenly distributed throughout the county.(39*) We shall not
readily ascribe the change to any mildheartedness of the lords.
They are Frenchmen, and in all probability they have got the most
they could out of a mass of peasantry made malleable and
manageable by the Conquest. We may rather be entitled to infer
that there has been a considerable change in rural economy. For
the cultivation of his demesne land the lord begins to rely less
and less on the labour of serfs whom he Reeds, more and more upon
the labour of tenants who have plots of their own and who feed
themselves. From this again we may perhaps infer that the labour
services of the villani and bordarii are being augmented. But at
any rate it speaks ill of their fate, that under the sway of
foreigners, who may fairly be suspected of some harshness and
greed, their inferiors, the true servi, are somewhat rapidly
disappearing. However, it is by no means impossible that with a
slavery so complete as that of the English theów the Normans were
not very familiar in their own country.(40*)
NOTES:
1. Hist. Eng. Law, i. 398.
2. D. B. i. 34, Limenesfeld.
3. D. B. i. 132 b, Hiz.
4. D. B. i. 132 b, Waldenei.
5. D. B. i. 136, Sandone.
6. AEthelb. 26.
7. Tacitus, Germ. c. 25: 'Caeteris servis non in nostrum morem,
descriptis per familiam ministeriis, utuntur. Suam quisque sedem,
suos penates regit. Frumenti modum dominus aut pecoris aut vestis
ut colono iniungit, et servus hactenus paret.'
8. Haddan and Stubbs, Councils, iii. 202.
9. See on the one hand Maurer, K. U. i. 410, on the other a
learned essay by Jastrow, Zur strafrechtlichen Stellung der
Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte, vol.
i. Maurer holds that the Anglo-Saxon slave is in the main a
chattel, that e.g. the master must answer for the delicts of his
slave in the same way that the owner answers for damage done by
his beasts, and that this liability can be clearly marked off
from the duty of the lord of free retainers who is merely bound
to produce them in court. Jastrow, on the contrary, thinks that
even at a quite early time the Anglo-Saxon slave is treated as a
person by criminal law; he has a wergild; he can be fined; his
trespasses are never compared to the trespasses of beasts; the
lord's duty, if one of his men is charged with crime, is much the
same whether that man be free or bond. Any theory involves an
explanation of several passages that are obscure and perhaps
corrupt.
10. Cnut, ii. 45-6.
11. Schmid, Appendix v. (Of Ranks); Pseudoleges Canuti, 60
(Schmid, p. 431).
12. Leg. Hen. 76 sect. 7: 'Differentia tamen weregildi multa est
in Cantia villanorum et baronum.'
13. Ibid. 76 sect. 2.
14. Ibid. 76 sect. 3.
15. Ibid. 76 sect. 3.
16. Ibid. 77; see Hist. Eng. Law, i. 405.
17. Ibid. 78 sect. 2. The difficult strublum we leave untouched.
18. Ibid. 78 sect. 2 from Cnut, ii. 20. On this see Jastrow's
comment, op. cit. p. 80.
19. Ibid. 70 sect. 5.
20. Ibid. 70 sect. 1; 76 sect. 4.
21. Ibid. 69 sect. 2.
22. Leg. Hen. 70 sect. 4: 'Si liber servum occidat similiter
reddat parentibus 40 den. et duas mufflas et unum pullum [al.
billum] mutilatum.' The mufflae are thick gloves. Compare Ancient
Laws of Wales, i. 239, 511; injured he receives a saraad; the
bondman has no galanas (wergild) but if 'the saraad of a bondman
is twelve pence, six for a coat for him, three for trousers, one
for buskins, one for a hook and one for a rope, and if he be a
woodman let the hook-penny be for an axe.' If we read billum
instead of pullum the English rule may remind us of the Welsh.
His hedger's gloves and bill-hook are the arms appropriate to the
serf, 'servitutis, arma'. cf. Leg. Hen. 78 sect. 2. As to the
man-bót see Liebermann, Leg. Edwardi, p. 71.
23. In Leg. Hen. 81 sect. 3 (a passage which seems to show that
by his master's favour even the servus may sometimes sue for a
wrong done to him) we have this sum: -- villanus: cothsetus:
servus:: 30: 15: 6.
24. Ibid. 75 sect. 4: 'suum peccatum est et dampnum.' See also 70
sect. 10, an exceedingly obscure passage.
25. Ibid. 59 sect. 23.
26. Ibid. 70 sect. 5; but for this our author has to go back as
far as Ine.
27. Ibid. 59 sect. 25.
28. Leg. Hen. 59 sect. 24; 85 sect. 4: 'Solus furatur qui cum
servo furatur.'
29. Ibid. 78 sect. 3; 59 sect. 25.
30. Hist. Eng. Law, i. 398, 402.
31. Hist. Eng. Law, ii. 457.
32. See Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes a
pound or a half-pound is paid.
33. D. B. i. 26.
34. Chron. Petrob. 163.
35. D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie...
Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7
servi cum 1 caruca.' D. B. iv. 265; 'Balduinus habet 1 mansionem
quae vocatur Bosleia... hanc possunt arare 8 carrucae et modo
tenet eam Roffus de Balduino. Inde habet R. 1 ferdinum et 1
carrucam et dimidiam in dominio et villani tenent aliam terram et
habent ibi 1 carrucam. Ibi habet R. 7 servos.' In the Exeter
record these seven serfs seem to get reckoned as being both servi
and villani. So in the account of Rentis, D. B. iv. 204-5, the
lord is said to have one quarter of the arable in demesne and two
oxen, while the villani are said to have the rest of the arable
and one team; but the only villani are 8 coliberti and 4 servi.
36. See p. 59, note 2.
37. Ellis, Introduction, ii. 504-6.
38. See, for example, the following Herefordshire entry, D. B. i.
180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et
prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8 inter
servos et ancillas et vaccarius et daia.'
39. Mr Round has drawn attention to the great increase of
bordarii: Antiquary (1882) vi. 9. In the second of our two
experiments the cases were taken from the royal demesne and the
lands the churches. The surveys of Norfolk and Suffolk profess to
enumerate the various classes of peasants T. R. E.; but commonly
each entry reports that there has been no change. Without saying
that we disbelieve these reports, we nevertheless say that a
verdict which asserts that things have always (semper) been as
they now are may easily be the outcome of nescience.
40. Hist. Eng. Law, i. 53-4.
3. THE VILLEINS
Next above the servi we see the small but interesting class
of buri, burs or coliberti. Probably it was not mentioned in the
writ which set the commissioners their task, and this may well be
the reason why it appears as but a very small class. It has some
900 members; still it is represented in fourteen shires:
Hampshire, Berkshire, Wiltshire, Dorset, Somerset, Devon,
Cornwall, Buckingham, Oxford, Gloucester, Worcester, Hereford,
Warwick, Shropshire -- in short, in the shires of Wessex and
western Mercia. Twice over our record explains a piece of rare
good fortune -- that buri and coliberti are all one.(1*) In
general they are presented to us as being akin rather to the
servi than to the villani or bordarii, as when we are told, 'In
demesne there is one virgate of land and there are 3 teams and 11
servi and 5 coliberti, and there are 15 villani and 15 bordarii
with 8 teams.'(2*) But this rule is by no means unbroken;
sometimes the coliberti are separated from the servi and a
precedence over the cotarii or even over the bordarii is given
them. Thus of a Wiltshire manor it is written, 'In demesne there
are 8 teams and 20 servi and 41 villani and 30 bordarii and 7
coliberti and 74 cotarii have among them all 27 teams.'(3*) Again
of a Warwickshire manor, 'There is land for 26 teams; in demesne
are 3 teams and 4 servi and 43 villani and 6 coliberti and 10
bordarii with 16 teams.'(4*) A classification which turns upon
legal status is cut by a classification which turns upon economic
condition. The colibertus we take to be an unfreer man (how there
come to be degrees of freedom is a question to be asked by and
by) than the cotarius or the bordarius, but on a given manor he
may be a more important person, for he may have plough beasts
while the cotarius has none; he may have two oxen while the
bordarius has but an ox.
In calling him a colibertus the Norman clerks are giving him
a foreign name, the etymological origin of which is very
dark;(5*) but this much seems plain, that in the France of the
eleventh century a large class bearing this name had been formed
out of ancient elements, Roman coloni and Germanic liti, a class
which was not rightless (for it could be distinguished from the
class of servi, and a colibertus might be made a servus by way of
punishment for his crimes) but which yet was unfree, for the
colibertus who left his lord might be pursued and recaptured.(6*)
As to the Englishman upon whom this name is bestowed we know him
to be a gebúr, a boor, and we learn something of him from that
mysterious document entitled 'Rectitudines Singularum
Personarum.(7*) His services, we are told, vary from place to
place; in some districts he works for his lord two days a week
and during harvest-time three days a week; he Pays gafol in
money, barley, sheep and poultry; also he has ploughing to do
besides his week-work; he pays hearthpenny; he and one of his
fellows must between them feed a dog. It is usual to provide him
with an outfit of two oxen, one cow, six sheep, and seed for
seven acres of his yardland, and also to provide him with
household stuff; on his death all these chattels go back to his
lord. Thus the boor is put before us as a tenant with a house and
a yardland or virgate, and two plough oxen. He will therefore
play a more important part in the manorial economy than the
cottager who has no beasts. But he is a very dependent person;
his beasts, even the poor furniture of his house, his pots and
crocks, are provided for him by his lord. Probably it is this
that marks him off from the ordinary villanus or 'townsman,' and
brings him near the serf. In a sense he may be a free man. We
have seen how the law, whether we look for it to the code of Cnut
or to the Leges Henrici, is holding fast the proposition that
every one who is not a theówman is a free man, that every one is
either a liber homo or a servus. We have no warrant for denying
to the boor the full wergild of 200 shillings. He pays the
hearthpenny, or Peter's penny, and the document that tells us
this elsewhere mentions this payment as the mark of a free
man.(8*) And yet in a very true and accurate sense he may be
unfree, unfree to quit his lord's service. All that he has
belongs to his lord; he must be perpetually in debt to his lord;
he could hardly leave his lord without being guilty of something
very like theft, a abstraction of chattels committed to his
charge. Very probably if he flies, his lord has a right to
recapture him. On the other hand, so dependent a man will be in a
very strict sense a tenant at will. When he dies not only his
tenement but his stock will belong to the lord; like the French
colibert he is mainmortable. At the same time, to one familiar
with the cartularies of the thirteenth century the rents and
services that this boor has to pay and perform for his virgate
will not appear enormous. If we mistake not, many a villanus of
Henry III's day would have thought them light. Of course any such
comparison is beset by difficulties, for at present we know all
too little of the history of wages and prices. Nevertheless the
intermediation of this class of buri or coliberti between the
serfs and the villeins of Domesday Book must tend to raise our
estimate both of the legal freedom and of the economic welfare of
that great mass of peasants which is now to come before us.(9*)
That great mass consists of some 108,500 villani, some 82,600
bordarii, and some 6,800 cotarii and coscets.(10*) Though in
manor after manor we may find representatives of each of these
three classes, we can see that for some important purpose they
form but one grand class, and that the term villanus may be used
to cover the whole genus as well as to designate one of its three
species. In the Exon Domesday a common formula, having stated the
number of hides in the manor and the number of teams for which it
can find work, proceeds to divide the land and the existing teams
between the demesne and the villani -- the villani, it will say,
have so many hides and so many teams. Then it will state how many
villani, bordarii, cotarii there are. But it will sometimes fall
out that there are no villani if that term is to be used in its
specific sense, and so, after having been told that the villani
have so much land and so many teams, we learn that the only
villani on this manor are bordarii.(11*) The lines which divide
the three species are, we may be sure, much rather economic than
legal lines. Of course the law may recognise them upon
occasion,(12*) but we cannot say that the bordarius has a
different status from that of the villanus. In the Leges both
fall under the term villani; indeed, as hereafter will be seen,
that term has sometimes to cover all men who are not servi but
are not noble. Nor must we suppose that the economic lines are
drawn with much precision or according to any one uniform
pattern. Of villani and bordarii we may read in every county;
cotarii or coscets in considerable numbers are found only in
Kent, Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset,
Berkshire, Hertford and Cambridge, though they are not absolutely
unknown in Buckingham, in Devon, in Hereford, Worcester,
Shropshire, Yorkshire. We cannot tell how the English jurors
would have expressed the distinction between bordarii and
cotarii, for while the cot is English, the borde is French. If we
are entitled to draw any inference from the distribution of the
cottiers, it would be that the smallest of small tenements were
to be found chiefly along the southern shore; but then there are
no cotarii in Hampshire, plenty in Sussex, Surrey, Wiltshire and
Dorset. Again, in the two shires last mentioned some distinction
seems to be taken between the coscets and the cotarii, the former
being superior to the latter.(13*) Two centuries later we find a
similar distinction among the tenants of Worcester Priory. There
are cotmanni whose rents and services are heavier, and whose
tenements are presumably larger than those of the cotarii, though
the difference is not very great.(14*)
The vagueness of distinctions such as these is well
illustrated by the failure of the term. bordarius (and none is
more prominent in Domesday Book) to take firm root in this
country.(15*) The successors of the bordarii seem to become in
the later documents either villani with small or cottiers with
large tenements. Distinctions which turn on the amount of land
that is possessed or the amount of service that is done cannot be
accurately formulated and forced upon a whole country. Perhaps in
general we may endow the villanus of Domesday Book with a virgate
or quarter of a hide, while we ascribe to the bordarius a less
quantity and doubt whether the cotarius usually had arable land.
But the survey of Middlesex, which is the main authority,
touching this matter, shows that the villanus may on occasion
have a whole hide,(16*) that is four virgates, and that often he
has but half a virgate; it shows us that the bordarius, though
often he has but four or five acres, may have a half virgate,
that is as much as many a villanus;(17*) it shows us that the
cotarius may have five acres, that is as much as many a
bordarius,(18*) though he will often have no more than a
croft.(19*) In Essex we hear of bordarii who held no arable
land.(20*) Nor dare we lay down any stern rule about the
possession of plough beasts. It would seem as if sometimes the
bordarius had oxen, while sometimes he had none.(21*) The
villanus might have two oxen, but he might have more or less. We
may find that in Cornwall a single team of eight is forthcoming
where there are(22*)
3 villani, 4 bordarii, 2 servi
2 " 2 " 3 "
0 " 5 " 2 "
1 " 5 " 1 "
2 " 5 " 4 "
2 " 3 " 1 "
3 " 6 " 3 "
In some Gloucestershire manors every villein seems to have a full
plough team.(23*) Merely economic grades are essentially
indefinite. Who could have defined a 'cottage' in the eleventh
century? Who can define one now?(24*)
In truth the vast class of men that we are examining must
have been heterogeneous to a high degree. Not only were some
members of it much wealthier than others, but in all probability
some were economically subject to others. So it was in later
days. In the thirteenth century we may easily find a manor in
which the lord is paying hardly any wages. He gets nearly all his
agricultural work done for him by his villeins and his cottiers.
Out of his cottiers however he will get but one day's work in the
week. If then we ask what the cottiers are doing during the rest
of their time, the answer surely must be that they are often
working as hired labourers on the villein's virgates, for a
cottier cannot have spent five days in the week over the tillage
of his poor little tenement. It is a remarkable feature of the
manorial arrangement that the meanest of the lord's nativi are
but rarely working for him. Thus if we were to remove the lord in
order that the village community might be revealed, we should
still see not only rich and poor, but employers and employed,
villagers and 'undersettles.'
Now all these people are in a sense unfree, while yet in some
other sense they are free. Let us then spend a short while in
discussing the various meanings that freedom may have in a legal
classification of the sorts and conditions of men. When we have
put out of account the rightless slave, who is a thing, it still
remains possible to say that some men are unfree, while others
are free, and even that freedom is a matter of degree. But we may
use various standards for the measurement of liberty.
Perhaps in the first place we shall think of what German
writers call Freizügigkeit, the power to leave the master whom
one has been serving. This power our ancestors would perhaps have
called 'fare-worthiness.'(25*) If the master has the right to
recapture the servant who leaves his service, or even if he has
the right to call upon the officers of the state to pursue him
and bring him back to his work, then we may account this servant
an unfree man, albeit the relation between him and his master has
been created by free contract. Such unfreedom is very distinct
from rightlessness. As a freak of jurisprudence we might imagine
a modern nobleman entitled to reduce by force and arms his
fugitive butler to well-paid and easy duties, while all the same
that butler had rights against all the world including his
master, had access to all courts, and could even sue for his
wages if they were not punctually paid. If we call him unfree,
then freedom will look like a matter of degree, for the master's
power to get back his fugitive may be defined by law in divers
manners. May he go in pursuit and use force? Must he send a
constable or sheriff's officer? Must he first go to court and
obtain a judgment, 'a decree for specific performance' of the
contract of service? The right of recapture seems to shade off
gradually into a right to insist that a breach of the contract of
service is a criminal offence to be punished by fine or
imprisonment.
Then, again, there may seem to us to be more of unfreedom in
the case of one who was born a servant than in the case of one
who has contracted to serve, though we should note that one may
be born to serve without being born rightless.
More to the point than these obvious reflections will be the
remark that in the thirteenth century we learn to think of
various spheres or planes of justice. A right good in one sphere
may have no existence in another. The rights of the villeins in
their tenements are sanctioned by manorial justice; they are
ignored by the king's courts. Here, again, the ideas of freedom
and unfreedom find a part to play. True that in the order of
legal logic freedom may precede royal protection; a tenure is
protected because it is free; still men are soon arguing that it
is free because it is protected, and this probably discloses an
idea which lies deep:(26*) -- the king's courts, the national
courts, are open to the free; we approach the rightlessness of
the slave if our rights are recognized only in a court of which
our lord is the president.
The thirteenth century will also supply us with the notion
that continuous agricultural service, service in which there is a
considerable element of uncertainty, is unfree service. Where
from day to day the lord's will counts for much in determining
the work that his tenants must do, such tenants, even if they be
free men, are not holding freely. But uncertainty is a matter of
degree, and therefore unfreedom may easily be regarded as a
matter of degree.(27*)
Then, again, in the law books of the Norman age we see
distinct traces of a usage which would make liber or liberalis an
equivalent for our noble, or at least for our gentle. The common
man with the wergild of 200 shillings, though indubitably he is
no servus, is not liberalis homo.(28*)
Lastly, in our thirteenth century we learn that privileges
and exceptional immunities are 'liberties' and 'franchises.' What
is our definition of a liberty, a franchise? A portion of royal
power in the hands of a subject. In Henry III's day we do not say
that the Earl of Chester is a freer man, more of a liber homo,
than is the Earl of Gloucester, but we do say that he has more,
greater, higher liberties.
Therefore we shall not be surprised if in Domesday Book what
we read of freedom, of free men, of free land is sadly obscure.
Let us then observe that the villanus both is and is not a free
man.
According to the usual terminology of the Leges, everyone who
is above the rank of a servus, but below the rank of a thegn, is
a villanus. The villanus is the non-noble liber homo. All those
numerous sokemen of the eastern counties whom Domesday ranks
above the villani, all those numerous liberi homines whom it
ranks above the sokemen, are, according to this scheme, villani
if they be not thegns. And this scheme is still of great
importance, for it is the scheme of bót and wer. By what have
been the most vital of all the rules of law, all these men have
been massed together; each of them has a wer of two hundred
shillings.(29*) This, we may remark in passing, is no trivial
sum, though the shillings are the small Saxon shillings of four
pence or five pence. There seems to be a good deal of evidence
that for a long time past the ox had been valued at 30 pence, the
sheep at 5 pence.(30*) At this rate the ceorl's death must be
paid for by the price of some twenty-four or thirty oxen. The
sons of a villanus who had but two oxen must have been under some
temptation to wish that their father would get himself killed by
a solvent thegn. Very rarely indeed do the Leges notice the
sokeman or mention liberi homines so as to exclude the villani
from the scope of that term.(31*) Domesday Book also on occasion
can divide mankind into slaves and free men. It does so when it
tells us that on a Gloucestershire manor there were twelve servi
whom the lord had made free.(32*) It does so again when it tells
us that in the city of Chester the bishop had eight shillings if
a free man, four shillings if a serf, did work upon a
festival.(33*) So in a description of the manor of South Perrott
in Somerset we read that a certain custom is due to it from the
manor of 'Cruche' (Crewkerne), namely that every freeman must
render one bloom of iron. We look for these free men at 'Cruche'
and see no one on the manor but villani, bordarii, coliberti and
servi.(34*) Of the Count of Mortain's manor of Bickenhall it is
written that every free man renders a bloom of iron at the king's
manor of Curry; but at Bickenhall there is no one above the
condition of a villanus.(35*) Other passages will suggest that
the villanus sometimes is and sometimes is not liber homo. On a
Norfolk manor we find free villeins, liberi villani.(36*)
For all this, however, there must be some very important
sense in which the villanus is not free. In the survey of the
eastern counties he is separated from the liberi homines by the
whole class of sochemanni. 'In this manor,' we are told, 'there
was at that time a free man with half a hide who has now been
made one of the villeins.(37*) At times the word francus is
introduced so as to suggest for a moment that, though the villein
may be liber homo, he is not francus.(38*) But this suggestion,
even if it be made, is not maintained, and there are hundreds of
passages which implicitly deny that the villein is liber homo.
But then these passages draw the line between freedom and
unfreedom at a point high in the legal scale, a point far above
the heads of the villani. At least for the main purposes of
Domesday Book the free man is a man who holds land freely. Let us
observe what is said of the men who have been holding manors. The
formula will vary somewhat from county to county, but we shall
often find four phrases used as equivalent, 'X tenuit et liber
homo fuit,' 'X tenuit ut liber homo,' 'X tenuit et cum terra sua
liber fuit,' 'X tenuit libere.'(39*) But this freeholding implies
a high degree of freedom, freedom of a kind that would have
shocked the lawyers of a later age.
With some regrets we must leave the peasants for a while in
order that we may glance at the higher strata of society. We may
take it as certain that, at least in the eyes of William's
ministers, the ordinary holder of a manor in the time of the
Confessor had been holding it under (sub) some lord, if not of
(de) some lord. But then the closeness of the connexion between
him and his lord, the character of the relation between lord, man
and land, had varied much from case to case. Now these matters
are often expressed in terms of a calculus of personal freedom.
But let us begin with some phrases which seem intelligible
enough. The man can, or he cannot, 'sell or give his land'; he
can, or he cannot, 'sell or give it without the licence of his
lord';(40*) he can sell it if he has first offered it to his
lords; he can sell it on paying his lord two shillings.(41*) This
seems very simple: -- the lord can, or (as the case may be)
cannot, prevent his tenant from alienating the land; he has a
right of preemption or he has a right to exact a fine when there
is a change of tenants. But then come phrases that are less in
harmony with our idea of feudal tenure. The man cannot sell his
land 'away from' his lord,(42*) he cannot give or sell it
'outside' a certain manor belonging to his lord,(43*) or, being
the tenant of some church, he cannot 'separate' his land from the
church,(44*) or give or sell it outside the church.(45*)
We have perhaps taken for granted under the influence of
later law that an alienation will not impair the lord's rights,
and will but give him a new instead of an old tenant. But it is
not of any mere substitution such as this that these men of the
eleventh century are thinking. They have it in their minds that
the man may wish, may be able, utterly to withdraw his land from
the sphere of his lord's rights. Therefore in many cases they
note with some care that the man, though he can give or sell his
land, cannot altogether put an end to such relation as has
existed between this land and his lord. He can sell, but some of
the lord's rights will 'remain,' in particular the lord's 'soke'
over the land (for the present let us say his jurisdiction over
the land) will remain.(46*) The purchaser will not of necessity
become the 'man' of this lord, will not of necessity owe him any
servitium or consuetudo, but will come under his
jurisdiction.(47*) Interchanging however with these phrases,(48*)
we have others which seem to point to the same set of
distinctions, but to express them in terms of personal freedom.
The man can, or else he cannot, withdraw from his lord, go away
from his lord, withdraw from his lord's manor; he can or he
cannot withdraw with his land; he can or cannot go to another
lord, or go wherever he pleases.(49*) Some of these phrases will,
if taken literally, seem to say that the persons of whom they are
used are tied to the soil; they cannot leave the land, or the
manor, or the soke. Probably in some of these cases the bond
between man and lord is a perpetual bond of homage and fealty,
and if the man breaks that bond by refusing the due obedience or
putting himself under another lord, he is guilty of a wrong.(50*)
But of pursuing him and capturing him and reducing him to
servitude there can be no talk. Many of these persons who 'cannot
recede' are men of wealth and rank, of high rank that is
recognized by law, they are king's thegns or the thegns of the
churches, they are 'twelve-hundred men.'(51*) However, it is not
the man's power to leave his lord so much as the power to leave
his lord and take his land with him that these phrases bring to
our notice; or rather the assumption is made that no one will
want to leave his lord if he must also leave his land behind him.
And then this power of taking land from this lord and bringing it
under another lord is conceived as an index of personal freedom.
Thus we read: 'These men were so free that they could go where
they pleased.'(52*) and again, 'Four sokemen held this land, of
whom three were free, while the fourth held one hide but could
not give or sell it.'(53*) Not that no one is called a liber homo
unless he has this power of 'receding' from his lord; far from
it; all is a matter of degree; but the free man is freer if he
can 'go to what lord he pleases,' and often enough the phrases 'X
tenuit et liber homo fuit,' 'X tenuit libere,' 'X tenuit ut liber
homo' seem to have no other meaning than this, that the occupant
of the land enjoyed the liberty of taking it with him
whithersoever he would. Therefore there is no tautology in saying
that the holder of the land was a thegn and a free man, though of
course there is a sense, there are many senses, in which every
thegn is free.(54*) All this talk of the freedom that consists in
choosing a lord and subjecting land to him may well puzzle us,
for it puzzled the men of the twelfth century. The chronicler of
Abingdon abbey had to explain that in the old days a free man
could do strange things.(55*)
Comparisons may be instituted between the freedom of one free
man and that of another: -- 'Five thegns held this land of Earl
Edwin and could go with their land whither they would, and below
them they had four soldiers, who were as free as
themselves.'(56*) A high degree of liberty is marked when we are
told that, 'The said men were so free that they could sell their
land with soke and sake wherever they would.'(57*) But there are
yet higher degrees of liberty. Of Worcestershire it is written,
'When the king goes upon a military expedition, if anyone who is
summoned stays at home, then if he is so free a man that he has
his sake and soke and can go whither he pleases with his land, he
with all his land shall be in the king's mercy.'(58*) The free
man is the freer if he has soke and sake, if he has jurisdiction
over other men. Exceptional privileges, immunities from common
burdens, are already regarded as 'liberties.' This is no new
thing; often enough when the Anglo-Saxon land books speak of
freedom they mean privilege.
The idea of freedom is equally vague and elastic if, instead
of applying it to men, we apply it to land or the tenure of land.
Two bordarii are now holding a small plot; 'they themselves held
it freely in King Edward's day.'(59*) Here no doubt there has
been a fall; but how deep a fall we cannot be sure. To say that a
man's land is free may imply far more freedom than freehold
tenure implies in later times; it may imply that the bond between
him and his lord, if indeed he has a lord, is of a purely
personal character and hardly gives the lord any hold over the
land.(60*) But this is not all. Perfect freedom is not attained
so long as the land owes any single duty to the state. Often
enough -- but exactly how often it were no easy task to tell --
the libera terra of our record is land that has been exempted
even from the danegeld; it is highly privileged land.(61*) Let us
remember that at the present day, though the definition of free
land or freehold land has long ago been fixed, we still speak as
though free land might become freer if it were 'free of land-tax
and tithe rent-charge.'
If now we return to the villanus and deny that he is liber
homo and deny also that he is holding freely, we shall be saying
little and using the laxest of terms. There are half-a-dozen
questions that we would fain ask about him, and there will be no
harm in asking them, though Domesday Book is taciturn.
Is he free to quit his lord and his land, or can he be
pursued and captured? No one word can be obtained in answer to
this question. We can only say that in Henry II's day the
ordinary peasant was regarded by the royal officials as
ascriptitius; the land that he occupied was said to be part of
his lord's demesne; his chattels were his lord's.(62*) But then
this was conceived to be, at least in some degree, the result of
the Norman Conquest and subsequent rebellions of the
peasantry.(63*) To this we may add that in one of our sets of
Leges, the French Leis of William the Conqueror, there are
certain clauses which would be of great importance could we
suppose that they had an authoritative origin, and which in any
case are remarkable enough. The nativus who flies from the land
on which he is born, let none retain him or his chattels; if the
lords will not send back these men to their land the king's
officers are to do it.(64*) On the other hand, the tillers of the
soil are not to be worked beyond their proper rent; their lord
may not remove them from their land so long as they perform their
right services.(65*) Whether or no we suppose that in the
writer's opinion the ordinary peasant was a nativus (of nativi
Domesday Book has nothing to say) we still have law more
favourable to the peasant than was the common law of Bracton's
age: -- a tiller who does his accustomed service is not to be
ejected; he is no tenant at will.
Hereafter we shall show that the English peasants did suffer
by the substitution of French for English lords. But the question
that we have asked, so urgent, so fundamental, as it may seem to
us, is really one which, as the history of the Roman coloni might
prove, can long remain unanswered. Men may become economically so
dependent on their lords, on wealthy masters and creditors, that
the legal question whether they can quit their service has no
interest. Who wishes to leave his all and go forth a beggar into
the world? On the whole we can find no evidence whatever that the
men of the Confessor's day who were retrospectively called
villani were tied to the soil. Certainly in Norman times the
tradition was held that according to the old law the villanus
might acquire five hides of land and so 'thrive to
thegn-right.'(66*)
Our next question should be whether he was subject to
seignorial justice. This is part of a much wider question that we
must face hereafter, for seignorial justice should be treated as
a whole. We must here anticipate a conclusion, the proof of which
will come by and by, namely, that the villanus sometimes was and
sometimes was not the justiciable of a court in which his lord or
his lord's steward presided. All depended on the answer to the
question whether his lord had 'sake and soke.' His lord might
have justiciary rights over all his tenants, or merely over his
villani, or he might have no justiciary rights, for as yet 'sake
and soke' were in the king's gift, and the mere fact that a lord
had 'men' or tenants did not give him a jurisdiction over them.
With this question is connected another, namely, whether the
villani had a locus standi in the national courts. We have seen
six villani together with the priest (undoubtedly a free man) and
the reeve of each vill summoned to swear in the great
inquest.(67*) One of the most famous scenes recorded by our book
is that in which William of Chernet claimed a Hampshire manor on
behalf of Hugh de Port and produced his witnesses from among the
best and eldest men of the county; but Picot, the sheriff of
Cambridgeshire, who was in possession, replied with the testimony
of villeins and mean folk and reeves, who were willing to support
his case by oath or by ordeal.(68*) Again, in Norfolk, Roger the
sheriff claimed a hundred acres and five villani and a mill as
belonging to the royal manor of Brainfort, and five villani of
the said manor testified in his favour and offered to make
whatever proof anyone might adjudge to them, but the half-hundred
of Ipswich testified that the land belonged to a certain church
of St Peter that Wihtgar held, and he offered to deraign
this.(69*) Certainly this does not look as if villani were
excluded from the national moots. But a rule which valued the
oath of a single thegn as highly as the oath of six ceorls would
make the ceorl but a poor witness and tend to keep him out of
court.(70*) The men who are active in the communal courts, who
make the judgments there, are usually men of thegnly rank; but to
go to court as a doomsman is one thing, to go as a litigant is
another.(71*)
We may now approach the question whether, and if so in what
sense, the land that the villanus occupies is his land.
Throughout Domesday Book a distinction is sedulously maintained
between the land of the villeins (terra villanorum) and the land
that the lord has in dominio. Let us notice this phrase. Only the
demesne land does the lord hold in dominio, in ownership. The
delicate shade of difference that Bracton would see between
dominicum and dominium is not as yet marked. In later times it
became strictly correct to say that the lord held in demesne (in
dominico suo) not only the land which he occupied by himself or
his servants, but also the lands held of him by villein
tenure.(72*) This usage appears very plainly in the Dialogue on
the Exchequer. 'You shall know,' says the writer, 'that we give
the name demesnes (dominica) to those lands that a man cultivates
at his own cost or by his own labour, and also to those which are
possessed in his name by his ascriptitii; for by the law of his
kingdom not only can these ascriptitii be removed by their lords
from the lands that they now possess and transferred to other
places, but they may be sold and dispersed at will; so that
rightly are both they and the lands which they cultivate for the
behalf of their lords accounted to be dominia.'(73*) Far other is
the normal, if not invariable, usage of Domesday Book. The terrae
villanorum, the silvae villanorum, the piscariae villanorum, the
molini villanorum -- for the villeins have woods and fisheries
and mills -- these the lord does not hold in dominio.(74*) Then
again the oxen of the villeins are carefully distinguished from
the oxen of the demesne, while often enough they are not
distinguished from the oxen of those who in every sense are free
tenants.(75*) Now as regards both the land and the oxen we seem
put to the dilemma that either they belong to the lord or else
they belong to the villeins. We cannot avoid this dilemma, as we
can in later days, by saying that according to the common law the
ownership of these things is with the lord, while according to
the custom of the manor it is with the villeins, for we believe
that a hall-moot, a manorial court, is still a somewhat
exceptional institution.
On the whole we can hardly doubt that both in their land and
in their oxen the villeins have had rights protected by law. Let
us glance once more at the scheme of bót and wer that has been in
force. A villein is slain; the manbót payable to his lord is
marked off from the much heavier wergild that is payable to his
kindred. If all that a villein could have belonged to his lord
such a distinction would be idle.
Still we take it that for one most important purpose the
villein's land is the lord's land: -- the lord must answer for
the geld that is due from it. Not that the burden falls
ultimately on the lord. On the contrary, it is not unlikely that
he makes his villeins pay the geld that is due from his demesne
land; it is one of their services that they must 'defend their
lord's inland' against the geld. But over against the state the
lord represents as well the land of his villeins as his own
demesne land. From the great levy of 1084 the demesne lands of
the barons had been exempted,(76*) but no doubt they had been
responsible for the tax assessed on the lands held by their
villani. We much doubt whether the collectors of the geld went
round to the cottages of the villeins and demanded here six pence
and there four pence; they presented themselves at the lord's
hall and asked for a large sum. Nay, we believe that very often a
perfectly free tenant paid his geld to his lord, or through his
lord.(77*) Hence arrangements by which some hides were made to
acquit other hides; such, for example, was the arrangement at
Tewkesbury; there were fifty hides which had to acquit the whole
ninety-five hides from all geld and royal service.(78*) And then
it might be that the lord, enjoying a special privilege, was
entitled to take the geld from his tenants and yet paid no geld
to the king; thus did the canons of St Petroc in Cornwall(79*)
and the monks of St Edmund in Suffolk.(80*) But as regards lands
occupied by villeins, the king, so it seems to us, looks for his
geld to the lord and he does not look behind the lord. This is no
detail of a fiscal system. A potent force has thus been set in
motion. He who pays for land -- it is but fair that he should be
considered the owner of that land. We have a hint of this
principle in a law of Cnut: -- 'He who has "defended" land with
the witness of the shire is to enjoy it without question during
his life and on his death may give or sell it to whom he
pleases.'(81*) We have another hint of this principle in a story
told by Heming, the monk of Worcester: -- in Cnut's time but four
days of grace were given to the landowner for the payment of the
geld; when these had elapsed, anyone who paid the geld might have
the land.(82*) It is a principle which, if it is applied to the
case of lord and villein, will attribute the ownership of the
land to the lord and not to the villein.
And then we would ask: What services do the villeins render?
A deep silence answers us, and as will hereafter be shown, there
are many reasons why we should not import the information given
us by the monastic cartularies, even such early cartularies as
the Black Book of Peterborough, into the days of the Confessor.
No doubt the villeins usually do some labour upon the lord's
demesne lands. In particular they help to plough it. A manor, we
can see, is generally so arranged that the ratio borne by the
demesne oxen to the demesne land will be smaller than that borne
by the villeins' oxen to the villeins' land. Thus, to give one
example out of a hundred, in a Somersetshire manor the lord has
four hides and three teams, the villeins have two hides and three
teams.(83*) But then the lord gets some help in his agriculture
from those who are undoubtedly free tenants. The teams of the
free tenants are often covered by the same phrase that covers the
teams of the villeins.(84*) Radknights who are liberi homines
plough and harrow at the lord's court.(85*) The very few entries
which tell us of the labour of the villeins are quite
insufficient to condemn the whole class to unlimited, or even to
very heavy work. On a manor in Herefordshire there are twelve
bordiers who work one day in the week.(86*) On the enormous manor
of Leominster there are 238 villani and 85 bordarii. The villani
plough and sow with their own seed 140 acres of their lord's land
and they pay 11 pounds and 52 pence.(87*) On the manor of
Marcle,which also is in Herefordshire, there are 36 villani and
10 bordarii with 40 teams. These villani plough and sow with
their own seed 80 acres of wheat and 71 of oats.(88*) At
Kingston, yet another manor in the same county, 'the villani who
dwelt there in King Edward's day carried venison to Hereford and
did no other service, so says the shire.(89*) On one
Worcestershire manor of Westminster Abbey 10 villeins and 10
bordiers with 6 teams plough 6 acres and sow them with their own
seed; on another 8 villeins and 6 bordiers with 6 teams do the
like by 4 acres.(90*) This is light work. Casually we are told of
burgesses living at Tamworth who have to work like the other
villeins of the manor of Drayton to which they are attached,(91*)
and we are told of men on a royal manor who do such works for the
king as the reeve may command;(92*) but, curiously enough, it is
not of any villeins but of the Bishop of Worcester's riding men
(radmanni) that it is written 'they do whatever is commanded
them'.(93*)
With our thirteenth century cartularies before us, we might
easily underrate the amount of money that was already being paid
as the rent of land at the date of the Conquest. In several
counties we come across small groups of censarii, censores,
gablatores who pay for their land in money, of cervisarii and
mellitarii who bring beer and honey. Renders in kind, in
herrings, eels, salmon are not uncommon, and sometimes they are
'appreciated', valued in terms of money. The pannage pig or the
grass swine, which the villeins give in return for mast and
herbage, is often mentioned. Throughout Sussex it seems to be the
custom that the lord should have 'for herbage' one pig from every
villein who has seven pigs.(94*) But money will be taken instead
of swine, oxen or fish.(95*) The gersuma, the tailla, the
theoretically free gifts of the tenants, are sums of money. But
often enough the villanus is paying a substantial money rent. We
have seen how at Leominster villeins plough and sow 140 acres for
their lord and pay a rent of more than £11.(96*) At Lewisham in
Kent the Abbot of Gand has a manor valued at £30; of this £2 is
due to the profits of the port while two mills with 'the gafol of
the rustics' bring in £8 12s.(97*) Such entries as the following
are not uncommon -- there is one villein rendering 30d.(98*) --
there is one villein rendering 10s(99*) -- 46 cotarii with one
hide render 30 shillings a year(100*) -- the villeins give 13s 4d
by way of consuetudo.(101*) No doubt it would be somewhat rare to
find a villein discharging all his dues in money -- this is
suggested when we are told how on the land of St Augustin one
Wadard holds a large piece 'de terra villanorum' and yet renders
no service to the abbot save 30s a year.(102*) At least in one
instance the villeins seem to be holding the manor in farm, that
is to say, they are farming the demesne land and paying a rent in
money or in provender.(103*) We dare not represent the stream of
economic history as flowing uninterruptedly from a system of
labour services to a system of rents. We must remember that in
the Conqueror's reign the lord very often had numerous serfs
whose whole time was given to the cultivation of his demesne. In
the south-western counties he will often have two, three or more
serfs for every team that he has on his demesne, and, while this
is so, we cannot safely say that his husbandry requires that the
villeins should be labouring on his land for three or four days
in every week.
As a last question we may ask: What was the English for
villanus? It is a foreign word, one of those words which came in
with the Conqueror. Surely, we may argue, there must have been
some English equivalent for it. Yet we have the greatest
difficulty in finding the proper term. True that in the
Quadripartitus and the Leges villanus generally represents ceorl;
ceorl when it is not rendered by villanus is left untranslated in
some such form as cyrliscus homo. But then ceorl must be a wider
word than the villanus of Domesday Book, for it has to cover all
the non-noble free men; it must comprehend the numerous
sochemanni and liberi homines of northern and eastern England.
This in itself is not a little remarkable; it makes us suspect
that some of the lines drawn by Domesday Book are by no means
very old; they cannot be drawn by any of those terms that have
been current in the Anglo-Saxon dooms or which still are current
in the text-books that lawyers are compiling. To suppose that
villanus is equivalent to gebúr is impossible; we have the best
warrant for saying that the Latin for gebúr is not villanus but
colibertus.(104*) Nor can we hold that the villanus is a geneat.
In the last days of the old English kingdom the geneat, the
'companion,' the 'fellow,' appears as a horseman who rides on his
lord's errands; we must seek him among the radmanni and
rachenistres and drengi of Domesday Book.(105*) We shall venture
the guess that when the Norman clerks wrote down villanus, the
English jurors had said túnesman. As a matter of etymology the
two words answer to each other well enough; the villa is the tún,
and the men of the villa are the men of the tún. In the enlarged
Latin version of the laws of Cnut, known as Instituta Cnuti,
there is an important remark: -- tithes are to be paid both from
the lands of the thegn and from the lands of the villeins -- 'tam
de dominio liberalis hominis, id est thegenes, quam de terra
villanorum, id est tuumannes (corr. tunmannes).'(106*) Then in a
collection of dooms known as the Northumbrian Priests' Law there
is a clause which orders the payment of Peter's pence. If a
king's thegn or landlord (landrica) withholds his penny, he must
pay ten half-marks, half to Christ, half to the king; but if a
túnesman withholds it, then let the landlord pay it and take an
ox from the man.(107*) A very valuable passage this is. It shows
us how the lord is becoming responsible for the man's taxes; if
the tenant will not pay them, the lord must. It is then in
connexion with this responsibility of the lord that the term
townsman meets us, and, if we mistake not, it is the lord's
responsibility for geld that is the chief agent in the definition
of the class of villani. The pressure of taxation, civil and
ecclesiastical, has been forming new social strata, and a new
word, in itself a vague word, is making its way into the
vocabulary of the law.(108*)
The class of villeins may well be heterogeneous. It may well
contain (so we think) men who, or whose ancestors, have owned the
land under a political supremacy, not easily to be distinguished
from landlordship, that belongs to the king; and, on the other
hand, it may well contain those who have never in themselves or
their predecessors been other than the tenants of another man's
soil. In some counties on the Welsh march there are groups of
hospites who in fact or theory are colonists whom the lord has
invited on to his land;(109*) but this word, very common in
France, is not common in England. Our record is not concerned to
describe the nature or the origin of the villein's tenure; it is
in quest of geld and of the persons who ought to be charged with
geld, and so it matters not whether the lord has let land to the
villein or has acquired rights over land of which the villein was
once the owner. Therefore we lay down no broad principle about
the rights of the villein, but we have suggested that taken in
the mass the villani of the Confessor's reign were far more
'law-worthy' than were the villani of the thirteenth century. We
cannot treat either the legal or the economic history of our
peasantry as a continuous whole; it is divided into two parts by
the red thread of the Norman Conquest. That is a catastrophe.
William might do his best to make it as little of a catastrophe
as was possible, to insist that each French lord should have
precisely the same rights that had been enjoyed by his English
antecessor; it may even be that he endeavoured to assure to those
who were becoming villani the rights that they had enjoyed under
King Edward.(110*) Such a task, if attempted, was impossible. We
hear indeed that the English 'redeemed their lands,' but probably
this refers only to those English lords, those thegns or the
like, who were fortunate enough to find that a ransom would be
accepted.(111*) We have no warrant for thinking that the
peasants, the common 'townsmen,' obtained from the king any
covenanted mercies. They were handed over to new lords, who were
very free in fact, if not in theory, to get out of them all that
could be got without gross cruelty.
We are not left to speculate about this matter. In after days
those who were likely to hold a true tradition, the great
financier of the twelfth, the great lawyer of the thirteenth
century, believed that there had been a catastrophe. As a result
of the Conquest, the peasants, at all events some of the
peasants, had fallen from their free estate; free men, holding
freely, they had been compelled to do unfree services.(112*) But
if we need not rely upon speculation, neither need we rely upon
tradition. Domesday Book is full of evidence that the tillers of
the soil are being depressed.
Here we may read of a free man with half a hide who has now
been made one of the villeins,(113*) there of the holder of a
small manor who now cultivates it as the farmer of a French lord
graviter et miserabiliter,(114*) and there of a sokeman who has
lost his land for not paying geld, though none was due;(115*)
while the great Richard of Tonbridge has condescended to abstract
a virgate from a villein or a villein from a virgate.(116*) But,
again, it is not on a few cases in which our record states that
some man has suffered an injustice that we would rely. Rather we
notice what it treats as a quite common event. Free men are being
'added to' manors to which they did not belong. Thus in Suffolk a
number of free men have been added to the manor of Montfort; they
pay no 'custom' to it before the Conquest, but now they pay £15;
AElfric who was reeve under Roger Bigot set them this
custom.(117*) Hard by them were men who used to pay 20 shillings,
but this same AElfric raised their rent to 100 shillings.(118*)
'A free man held this land and could sell it, but Waleran father
of John has added him to this manor':(119*) -- Entries of this
kind are common. The utmost rents are being exacted from the
farmers: -- this manor was let for three years at a rent of £12
and a yearly gift of an ounce of gold, but all the farmers who
took it were ruined(120*) -- that manor was let for £3 15s. but
the men were thereby ruined and now it is valued at only
45s.(121*) About these matters French and English cannot agree:
-- this manor renders £70 by weight, but the English value it at
only £60 by tale(122*) -- the English fix the value at £80, but
the French at £100(123*) -- Frenchmen and Englishmen agree that
it is worth £50, but Richard let it to an Englishman for £60, who
thereby lost £10 a year, at the very least.(124*) 'It cannot
pay,' 'it can hardly pay,' 'it could not stand' the rent, such
are the phrases that we hear. If the lord gets the most out of
the farmer to whom he has leased the manor, we may be sure that
the farmer is making the most out of the villeins.
But the most convincing proof of the depression of the
peasantry comes to us from Cambridgeshire. The rural population
of that county as it existed in 1086 has been classified
thus:(125*) --
sochemanni 213
villani 1902
bordarii 1428
cotarii 736
servi 548
But we also learn that the Cambridgeshire of the Confessor's day
had contained at the very least 900 instead of 200 sokemen.(126*)
This is an enormous and a significant change. Let us look at a
single village. In Meldreth there is a manor; it is now a manor
of the most ordinary kind; it is rated at 3 hides and 1 virgate,
but contains 5 team-lands; in demesne are half a hide and one
team, and 15 bordarii and 3 cotarii have 4 teams, and there is
one servus. But before the Conquest this land was held by 15
sokemen; 10 of them were under the soke of the Abbey of Ely and
held 2 hides and half a virgate; the other 5 held 1 hide and half
a virgate and were the men of Earl AElfgar.(127*) What has become
of these fifteen sokemen? They are now represented by fifteen
bordiers and five cottiers; and the demesne land of the manor is
a new thing. The sokemen have fallen, and their fall has brought
with it the consolidation of manorial husbandry and seignorial
power. At Orwell Earl Roger has now a small estate; a third of it
is in demesne, while the residue is held by 2 villeins and 3
bordiers, and there is a serf there. This land had belonged to
six sokemen, and those six had been under no less than five
different lords; two belonged to Edith the Fair, one to
Archbishop Stigand, one to Robert Wimarc's son, one to the king,
and one to Earl Aelfgar.(128*) Displacements such as this we may
see in village after village. No one can read the survey of
Cambridgeshire without seeing that the freer sorts of the
peasantry have been thrust out, or rather thrust down.
Evidence so cogent as this we shall hardly find in any part
of the record save that which relates to Cambridgeshire and
Bedfordshire. But great movements of the kind that we are
examining will hardly confine themselves within the boundaries of
a county. A little variation in the formula which tells us who
held the land in 1066 may hide from us the true state of the
case. We cannot expect that men will be very accurate in stating
the legal relationships that existed twenty years ago. Since the
day when King Edward was alive and dead many things have
happened, many new words and new forms of thought have become
familiar. But taking the verdicts as we find them, there is still
no lack of evidence. In Essex we may see the liberi homines
disappearing.(129*) But we need not look only to the eastern
counties. At Bromley, in Surrey, Bishop Odo has a manor of 32
hides, 4 of which had belonged to 'free men' who could go where
they pleased, but now there are only villeins, cottiers, and
serfs.(130*) We turn the page and find Odo holding 10 hides which
had belonged to 'the alodiaries of the vill.'(131*) In Kent Hugh
de Port is holding land that was held by 6 free men who could go
whither they would; there are now 6 villeins and 14 bordiers
there, with one team between them.(132*) Students of Domesday
were too apt to treat the antecessores of the Norman lords as
being in all cases lords of manors. Lords of manors, or rather
holders of manors, they often were, but as we shall see more
fully hereafter, when we are examining the term manerium, such
phrases are likely to deceive us. Often enough they were very
small people with very little land. For example these six free
men whom Hugh de Port represents had only two and a half
team-lands. We pass by a few pages and find Hugh de Montfort with
a holding which comprises but one team-land and a half; he has 4
villeins and 2 bordiers there. His antecessores were three free
men, who could go whither they would.(133*) They had need for but
12 oxen; they had no more land than they could easily till, at
all events with the help of two or three cottages or slaves. To
all appearance they were no better than peasants. They or their
sons may still be tilling the land as Hugh's villeins. When we
look for such instances we very easily find them. The case is not
altered by the fact that the term 'manor' is given to the
holdings of these antecessores. In Sussex an under-tenant of Earl
Roger has an estate with four villeins upon it. His antecessores
were two free men who held the land as two manors. And how much
land was there to be divided between the two? There was one
team-land. Such holders of maneria were tillers of the soil,
peasants, at best yeomen.(134*) If they were of thegnly rank,
this again does not alter the case. When in the survey of Dorset
we read how four thegns held two team-lands, how six thegns held
two team-lands, eight thegns two team-lands, nine thegns four
team-lands, eleven thegns four team-lands,(135*) we cannot of
course be certain that each of these groups of co-tenants had but
one holding; but thegnly rank is inherited, and if a thegn will
have nine or ten sons there will soon be tillers of the soil with
the wergild of twelve hundred shillings. Now if these things are
being done in the middling strata of society, if the sokemen are
being suppressed or depressed in Cambridgeshire, the alodiaries
in Sussex, what is likely to be the fate of the poor? They will
have to till their lord's demesne graviter et miserabiliter. He
can afford to dispense with serfs, for he has villeins.
A last argument must be added. What we see in the thirteenth
century of the ancient demesne of the crown(136*) might lead us
to expect that in Domesday Book 'the manors of St Edward' would
stand out in bold relief. Instead of a population mainly
consisting of villeins, shall we not find upon them large numbers
of sokemen, the ancesters of the men who in after days will be
protected by the little writ of right and the Monstraverunt?
Nothing of the kind. The royal manor differs in no such mode as
this from any other manor. If it lies in a county in which other
manors have sokemen, then it may or may not have sokemen. If it
lies in a county in which other manors have no sokemen, it will
have none. Cambridgeshire is a county in which there are some,
and have been many, sokemen; there is hardly a sokeman upon the
ancient demesne. In after days the men of Chesterton, for
example, will have all the peculiar rights attributed by lawyers
to the sokemen of St Edward. But St Edward, if we trust Domesday
Book, had never a sokeman there; he had two villeins and a number
of bordiers and cottiers.(137*) It seems fairly clear that from
an early time, if not from the first days of the Conquest
onwards, the king was the best of landlords. The tenants of those
manors that were conceived as annexed to the crown, those tenants
one and all, save the class of slaves which was disappearing, got
a better, a more regular justice than that which the villeins of
other lords could hope for. It was the king's justice, and
therefore -- for the king's public and private capacities were
hardly to be distinguished -- it was public justice, and so
became formal justice, defined by writs, administered in the last
resort by the highest court, the ablest lawyers. And so sokemen
disappear from private manors. Some of them as tenants in free
socage may maintain their position; many fall down into the class
of tenants in villeinage. On the ancient demesne the sokemen
multiply; they appear where Domesday knew them not; for those who
are protected by royal justice can hardly (now that villeinage
implies a precarious tenure) be called villeins, they must be
'villein sokemen' at the least. Whether or no we trust the
tradition which ascribes.to the Conqueror a law in favour of the
tillers of the soil, we can hardly doubt that the villani and
bordarii whom Domesday Book shows us on the royal manors are
treated as having legal rights in their holdings. And if this be
true of them, it should be true of their peers upon other manors.
Yes, it should be true; the manorial courts that are arising
should do impartial justice even between lord and villeins; but
who is to make it true?
NOTES:
1. D. B. i. 38, Coseham: '8 burs i. coliberti.' Ib. 38 b Dene:
'et coliberti [vel bures interlined].'
2. D. B. i. 65, Wintreburne.
3. D. B. i. 75, Bridetone et Bere.
4. D. B. i. 239 b, Etone.
5. Guérard, Cartulaire de L'Abbaye de S. Père de Chartres, vol.
i. p. xlii.
6. The position of the coliberti is discussed by Guérard, loc.
cit and by Lamprecht, Geschichte des Französischen
Wirthschaftslebens (in Schmoller's Forschungen, Bd i.), p. 81.
Guérard says, 'Les coliberts peuvent se placer à peu près
indifféremment ou au dernier des hommes libres, ou à la tête des
hommes engagés dans des liens de la servitudei'
7. Schmid. App. iii. c. 4.
8. Rectitudines, c. 3.
9. Occasionally the coliberti of D. B. are put before us as
paying rents in money or in kind. Thus D. B. i. 38, Hants: 'In
Coseham sunt 4 hidae quae pertinent huic manerio ubi T. R. E.
erant 8 burs i. coliberti cum 4 carucis reddentes 50 sol. 8 den.
minus.' D. B. i. 179 b. Heref.: 'Villani dant de consuetudine 13
sol. et 4 den. et [sex] coliberti reddunt 3 sextarios frumenti et
ordei et 2 oves et dimidiam cum agnis et 2 den. et unum obolum.'
D. B. i. 165: 'et in Glouucestre 1 burgensis reddens 5 den. et 2
coliberti reddentes 34 den.' In a charter coming from Bishop
Denewulf (K. 1079) we read of three wite-theówmen who were
boor-born and three who were theów-born.
10. Ellis, Introduction, ii. 511-14.
11. For examples see D. B. iv. 211 and the following pages.
12. Leg. Hen. 81, sect. 3 'Quidam villani qui sunt eiusmodi
leierwitam et blodwitam et huiusmodi minora forisfacta emerunt a
dominis suis, vel quomodo meruerunt de suis et in suos, quorum
letgefoth vel overseunessa est 30 den.; cothseti 15 den.; servi 6
den.'
13. D. B. i. 71, Haseberie: '5 villani et 13 coscez et 2
cotarii.' Ibid 80 b: Chinestanestone: '18 villani et 14 coscez et
4 cotarii.'
14. Worcester Register, 59 b (Sedgebarrow): four cotmanni, each
of whom pays 20d. or works one day a week and two in autumn; two
cottarii, each whom pays 12d. or works one day a week. Ibid. 69 b
(Shipston): two cotmanni, each of whom pays 3s. or works like a
virgater; two cottarii, each of whom pays 13d. Ibid. 76 a
(Cropthorn): two cotmanni, each of whom pays 2s. or works like a
cottarius; two cottarii, each of whom pays 18d. or works one day
a week.
15. Vinogradoff, Villainage, 149, gives a few instances of its
occurrence; but it seems to be very rare.
16. D. B. i. 127 b, Fuleham: 'Ibi 5 villani quisque 1 hidam.'
There are a good many other instances.
17. D. B. i. 130, Hamtone; 'et 4 bordarii quisque de dimidia
virga.'
18. D. B. i. 127, Herges: 'et 2 cotarii de 13 acris.'
19. D. B. i. 127b, Fuleham: 'et 22 cotarii de dimidia hida et 8
cotarii de suis hortis.'
20. D. B. ii. 75 b: 'et 5 bordarii super aquam qui non tenent
terram.'
21. D. B. i. 163 b, Turneberie: 'et 42 villani et 18 radchenistre
cum 21 carucis et 23 bordarii et 15 servi et 4 coliberti.' Ibid
164, Hechanestede: 'et 5 villani et 8 bordarii cum 6 carucis; ibi
6 servi.'
22. D. B. iv. 21 5-223; on p. 223 there are two villani with one
ox.
23. D. B. i. 164, Tedeneham: 'Ibi erant 38 villani habentes 38
carucas.' Ibid. 164 b, Nortune, '15 villani cum 15 carucis;
Stanwelle, 5 villani cum 5 carucis.'
24. Malden, Domesday Survey of Surrey (Domesday Studies, ii.)
469, says that in Surrey 'bordarii and cotarii only occur once
together upon the same manor, and very seldom in the same
hundred.... There are three hundreds, Godalming, Wallington and
Elmbridge, where the cotarii are nearly universal to the
exclusion of bordarii. In the others the bordarii are nearly or
quite universal, to the exclusion of the cotarii.'
25. Thorpe, Diplomatarium, 623, King Eadwig declares that a
certain churchward of Exeter is 'free and fare-worth.
26. Hist. Eng. Law, i, 541 ff.
27. Hist. Eng. Law, i, 354-5.
28. Liebermann, Instituta Cnuti, Transact. Roy. Hist. Soc. vii.
93.
29. Leg. Will. Conq. 1. 8: 'La were del thein 20 lib. in
Merchenelahe, 25 lib. in Westsexenelahe. La were del vilain 100
sol. en Merchenelahe e ensement en Westsexene.' Leg. Henr. 70, 1:
'In Westsexa quae caput regni est et legum, twyhindi, i.e.
villagi, wera est 4 lib.; twelfhindi, i.e. thaigi, 25 lib.' Ibid.
76, section 2: 'Omnis autem wera liberorum est aut servorum...
liberi alii twyhindi, alii syxhindi, alii twelfhindi'; section 6,
twihindus = cyrliscus = villanus. As to the 100 shillings in the
first of these passages, see Schmid, p. 676. There is some other
evidence that the equation, 1 Norman shilling = 2 English
shillings, was occasionally treated as correct enough. As to the
six-hynde man, see Schmid, p. 653; we may doubt whether he
existed in the eleventh century, but according to the Instituta
Cnuti the radchenistres of the west may have been six-hynde. We
must got draw from Alfred's treaty with the Dages (Schmid, p.
107) the inference that the normal ceorl was seated on
gafol-land. This international instrument is settling an
exceptionally high tariff for the maintenance of the peace. Every
man, whatever his rank, is to enjoy the handsome wergild of 8
half-marks of pure gold, except the Danish lysing and the English
eeorl who is seated on gafol-land; these are to have but the
common wer of 200 shillings. The parallel passage in AEthelred's
treaty (Schmid, p. 207) sets £50 on every free man if he is
killed by a man of the other race. See Schmid, p. 676.
30. Ine, 55: a sheep with a lamb until a fortnight after Easter
is worth 1 shilling. AEethelstan, vi. 6: a horse 120 pence, an ox
30 pence, a cow 20, a sheep 1 shilling (5 pence). Ibid. 8, sect.
5: an ox 30 pence. Schmid, App. 1. c. 7: a horse 30 shillings, a
mare 20 shillings, an ox 30 pence, a cow 24 pence, a swine 8
pence, a sheep 1 shilling, a goat 2 pence, a man (i.e. a slave) 1
pound. Schmid, App. iii. c. 9: a sheep or 3 pence. D. B. i. 117
b.: an ox or 30 pence. D. B. i. 26: Tolls at Lewes; for a mag 4
pence, an ox a halfpenny. This preserves the equation that we
have already seen, namely, 1 slave = 8 oxen. Thus the full team
is worth one pound. On the twelfth-century Pipe Rolls the ox
often costs 3 shillings (= 36 pence) or even more.
31. In Leg. Will. Conq. 1. 16, we hear of the forisfacturae
(probably the 'insult fines') due to archbishops, bishops,
counts, barons and sokemen; the baron has 10 shillings, the
sokeman 40 pence. In the same document, e. 20, section 2, we read
of the reliefs of counts, barons, vavassors and villeins. Leg.
Edw. Conf. 12, section 4, speaks of the manbót due in the
Danelaw. on the death of a villanus or a socheman 12 ores are
paid, on the death of a liber homo 3 marks.
32. D. B. i. 167 b, Heile: 'ibi erant 12 servi quos Willelmus
liberos fecit.'
33. D. B. i 263: 'Si quis liber homo facit opera in die feriato
inde episcopus habet 8 solidos. De servo autem vel ancilla
feriatum diem infringente, habet episcopus 4 solidos.' Compare
Cnut, ii. 45.
34. D. B. i. 86: 'Huic manerio reddebatur T. R. E. de Cruche per
annum consuetudo, hoc est 6 oves cum agnis totidem, et quisque
liber homo i. blomam ferri.' South Perrott had belonged to the
Confessor, Crewkerne to Edith, probably 'the rich and fair.' For
the description of Cruche see D. B. i. 86 b. As to the 'bloom' of
iron see Ellis, Introduction, i. 136.
35. D. B. i. 92. See also p. 87 b, the accont of Seveberge.
36. D. B. ii. 145.
37. D. B. ii. I: 'In hoc manerio erat tunc temporis quidam liber
homo de dimidia hida qui modo effectus est unus de villanis.'
38. Thus D. B. i. 127, Mid.: 'inter francos et villanos 45
carucae'; Ibid. 70, Wilts: '4 villani et 3 bordarii et unus
fracus cum 2 carucis'; Ibid. 241, Warw.: 'Ibi sunt 3 francones
homines cum 4 villanis et 3 bordariis.' Sometimesfrancus may be
an equivalent for francigena; e.g. i.254b, where in one entry we
have unus francigena and in the next unus francus homo. But an
Englishman may be francus; ii. 54 b "accepit 15 acras de uno
franco teigno et misit cum terra sua.' However, it is not an
insignificant fact that the very name of Frenchman (francigena)
must have suggested free birth.
39. Eor examples see the surveys of Warwick, Stafford and
Shropshire.
40. D. B. ii. 260: 'et 7 homines qui possent vendere terram suam
si eam prius obtulissent domino suo.'
41. D. B. ii. 278 b: 'si vellent recedere daret quisqe 2
solidos.' Ibid. 207: 'et possent recedere si darent 2 solidos.'
42. D. B. ii. 435: 'Et super Vlnoht habuit commendationem
antecessor R. Malet, teste hundredo, et non potuit vendere nec
dare de eo terram suam.' Ibid. 397: 'viderunt eum iurare quod non
poterat dare [vel] vendere terram suam ab antecessore Ricardi.'
43. D. B. i. 145: 'Ioc manerium tenuit Aluuinus homo Estan, non
potuit dare nec vedere extra Brichelle manerium Estani.'
44. D. B. i. 133: 'Hanc terram tenuit Aluric Blac 2 hidas de
Abbate Westmonasterii.T. R. E.: non poterat separate ab
aecclesia'
45. D B. ii. 216 b: 'Ita est in monasterio quod nec vendere nec
forisfacere potest extra ecclesia.'
46. For example, D. B. i. 201: 'terram suam vendere potuerunt,
soca vero remansit Abbati.' D. B. ii, 78: 'et poterant vendere
terram set soca et saca remanebat antecessori Alberici.' Ibid.
ii. 92 b: 'unus sochemannus fuit in hac terra de 15 acris quas
poterat vendere, set soca iacebat in Warleia terra S. Pauli.'
47. But the consuetudo, rent or the like, may 'remain': D. B. ii.
181 b: 'et possent vendere terram suam set consuetudo remanebat
in manerio.' And so the commendatio may 'remain'; ii. 357 b: 'Hi
poterant dare et vendere terram, set saca et soca et commendatio
remanebant Sancto [Eadmundo].'
48. For example, D. B. i. 201: 'Homines Abbatis de Ely fuerunt et
4 terram suam vendere potuerunt, soca vero remansit Abbati, et
quartus 1 virgam et dimidiam habuit et recedere non poutuit.' See
the important evidence produced by Round, Feudal England,24, as
to the equivalence of these phrases.
49. One of the commonest terms is recedere -- 'potuit recedere'
-- 'non potuit recedere'. i. 41, 'non potuit cum terra recedere
ad alium dominum'; i. 56 b, 'to liberi homines T. R. E. tenebant
12 hidas et dimidiam de terra eiusdem manerii sed inde recedere
non poterant'; ii. 19 b, 'non poterant recedere a terra sine
licentia Abbatis'; ii. 57 b, 'non poterant recedere ab illo
manerio'; ii 66, 'non poterant removere ab illo manerio'; ii. 41,
'non poterant recedere a soca Wisgari'; ii. 41 b, 'nec poterant
abire sine iussu domini'; i. 66 b, 'qui tenuit T. R. E. non
poterat ab aecclesia diverti [separari'] ; ii. 116, 'unus
[burgensis] erat ita dominicus ut non posset recedere nec
homagiurn facere sine licentia ([Stigandi]'; ii. 119, 'de istis
hominibus erant 36 ita dominice Regis Edwardi ut non pssent esse
homines cuiuslibet sed semper tamen consuetudo regis remanebat
preter herigete.' A remarkable form is, ii. 57 b, 'non potuit
istam terram mittere in aliquo loco nisi in abbatia.' Then
'potuit ire quo voluit,' 'non potuit ire quolibet' are common
enough.
50. Ine, c. 39: He who leaves his lord without permission pays
sixty shillings to his lord.
51. For example, D. B. i. 41: 'Tres taini tenuerunt de episcopo
et non potuerunt ire quolibet.'
52. D. B. i. 35 b, Tornecrosta.
53. D. B. i. 212 b, Stanford.
54. D. B. i. 249 b: 'Tres taini tenuerunt et liberi homines
fuerunt'; 256, 'Ipsi taini liberi erant'; 259 b, 'Quatuor taini
tenuerunt ante eum et liberi fuerunt.'
55. Chron. Abingd. i. 490: 'Nam quidam dives, Turkillus nomine,
sub Haroldi comitis testimonio et consultu, de se cum sua terra
quae Kingestun dicitur, ecclesiae Abbendonensi et abbati Ordrico
homagium fecit; licitum quippe libero cuique, illo in tempore,
sic agere erat.'
56. D. B. i. 180 b: 'et poterant ire cum terra quo volebant, et
habebant sub se 4 milites, ita liberos ut ipsi erant.'
57. D. B. ii. 59.
58. D. B. i. 172: 'si ita liber homo est ut habeat socam suam et
sacam et cum terra sua possit ire quo voluerit.'
59. D. B. i. 84 b.
60. D. B. ii. 213: 'Hanc terram calumpniatur esse liberam
Vlchitel homo Hermeri, quocunque modo iudicetur, vel bello vel
iudicio, et alius est praesto probare eo modo quod iacuit ad
ecclesiam [S. Adeldredae] die quo rex Edwardus obiit. Set totus
hundretus testatur eam fuisse T. R. E. ad S. Adeldredam.'
61. See in particular the survey of Gloucestershire; D. B. i. 165
b: 'Hoc manerium quietum est a geldo et ab omni forensi servitio
praeter aecclesiae'; Ibid. 'Haec terra libera fuit et quieta ab
omni geldo et regali servitio'. 170, 'Una hida et dimidia libera
a geldo.' When after reading these passage's we come upon the
following (167 b), 'Isdem W. tenet Tatinton: Ulgar tenuit de rege
Edwardo: haec terra libera est,' and when we observe that the
land is not hidated, we shall probably infer that 'This land is
free' means 'This land is exempt from geld, and [perhaps] from
all other royal service.'
62. Dialogus, i. c. 11; ii. c. 14.
63. Dialogus, i. c. 10.
64. Will. Conq. i. 30, 31: 'Si les seignurages ne facent altri
gainurs venir a lour terre, la justise le facet.' The Latin
version is ridiculous: 'Si domini terrarum non procurent idoneos
cultores ad terras suas colendas, iustitiarii hoc faciant.' The
translator seems to have been puzzled by the word altri or
autrui.
65. Ibid. 29.
66. Schmid, App. v.; vii., 2, 9-11; Pseudoleges Canuti, 60-1
(Schmid, p. 431).
67. D. B. iv. 497.
68. D. B. i. 44 b: 'Istam terram calumpniatur Willelmus de
Chernet, dicens pertinere ad manerium de Cerneford feudum Hugonis
de Port per hereditatem sui antecessoris et de hoc suum
testimonium adduxit de melioribus et antiquis hominibus totius
comitatus et hundredi; et Picot contraduxit suum testimonium de
villanis et vili plebe et de prepositis, qui volunt defendere per
sacramentum ve dei iudicium, quod ille qui tenuit terram liber
homo fuit et potuit ire cum terra sua quo voluit. Sed testes
Willelmi nolunt accipere legem nisi regis Edwardi usque dum
diffiniatur per regem.' It seems possible that William's
witnesses wished to insist on the ancient rule that the oath of
one thegn would countervail the oaths of six ceorls. This was the
old English law (lex Edwardi) on which they relied.
69. D. B. ii. 393: 'et 5 villani de eodem manerio testantur ei et
offerunt legem qualem quis iudicaverit; set dimidium hundret de
Gepeswiz testantur quod hoc iacebat ad ecclesiam T. R. E. et
Wisgarus tenebat et offert derationari.'
70. Schmid, App. vi.; Leg. Hen. 64 sect. 2: 'thaini iusiurandum
contravalet iusiurandum sex villanorum.'
71. Leg. Hen. 29, sect. 1.
72. Hist Eng. Law, i. 344.
73. Dialogus, i. c. 11
74. D. B. i. 67 b; 'De terra villanorum dedit abbatissa uni
militi 3 hidas et dimidiam.' Ibid. 89: 'tenet Johannes de
episcopo 2 hidas de terra villanorum.' Ibid. i. 169: 'unus
francigena tenet terram unius villani.' Ibid. 164: 'In Sauerna 11
piscariae in dominio et 42 piscariae villanorum.' Ibid. 230:
'Silva dominica 1 leu. long. et dim. leu. lat. Silva villanorum 4
quarent. long. et 3 quarent. lat.' Ibid. 7 b: '5 molini
villanorum.' We have not seen dominicum used as a substantive;
but in the Exon. D. B. iv. 75 we have dominicatus Regis, for the
king's demesne. There is already a slight ambiguity about the
term dominium. We may say that a church has a manor in dominio,
meaning thereby that the manor as a whole is held by the church
itself and is not held of it by any tenant; and then we may go on
to say that only one half of the land comprised in this manor is
held by the church in dominio. Cf. Hist. Eng. Law, ii. 126.
75. For example, D. B. i. 159: 'Nunc in dominio 3 carucae et 6
servi, et 26 villani cum 3 bordariis et 15 liberi homines habent
30 carucas.' Ibid. 165: 'In dominio 2 carucae et 9 villani et 6
bordarii et presbyter et unus rachenistre cum 10 carucis.' Ibid.
258 b: 'et 3 villani et 2 bordarii et 2 francigenae cum 2
carucis.' But such entries are common enough.
76. Round, Domesday Studies, i. 97.
77. D. B. i. 28: 'Ipse Willelmus de Braiose tenet Wasingetune....
De hac terra tenet Gislebertus dim. hidam, Radulfus I hidam,
Willelmus 3 virgas, Leuuinus dim. hidam qui potuit recedere cum
terra sua et dedit geldum domino suo et dominus suus nichil
dedit.'
78. B. i. 163, b.
79. D. B. i. 121: 'Omnes superius descriptas terras tenebant T.
R. E. S. Petrocus; huius sancti terrae nunquam reddiderunt geldum
nisi ipsi aecclesiae.' D. B. iv. 187: 'Terrae S. Petrochi nunquam
reddiderunt gildum hisi sancto.'
80. D. B. ii. 372: 'Et quando in hundreto solvitur ad geldum 1
libra tunc inde exeunt 60 denarii ad victum monachorum.'
81. Cnut, ii. 79: 'And se þe land gewerod haebbe be scire
gewitnisse....' The A.-S. werian is just the Latin defendere.
82. Heming, Cartulary, i. 278; Round, Domesday Studies, i. 89.
Compare the story in D. B. i. 216 b: Osbern or Osbert the
fisherman claims certain land as having belonged to his
'antecessor'; 'sed postquam rex Willelmus in Angliam venit, ille
gablum de hac terra dare noluit et Radulfus Taillgebosc gablum
dedit et pro forisfacto ipsam terram sumpsit et cuidam suo militi
tribuit.'
83. D. B. iv. 245, Cruca.
84. See above p. 81, note 3.
85. D. B. i. 163: 'Ibi erant villani 21 et 9 rachenistres
habentes 26 carucas et 5 coliberti et unus bordarius cum 5
carucis. Hi rachenistres arabant et herciabant ad curiam domini.'
Ibid. 'Ibi 19 liberi homines rachenistres habentes 48 carucas cum
suis hominibus.' Ibid. 166: 'De terra huius manerii tenebant
radchenistres, id est liberi homines, T. R. E., qui tamen omnes
ad opus domini arabant et herciabant et falcabant et metebant.'
86. D. B. i. 186, Ewias.
87. D. B. i. 180.
88. D. B. i. 179 b.
89. D. B. i. 179 b.
90. D. B. i. 174 b.
91. D. B. i. 246 b. So the burgesses of Steyning (i. 17) 'ad
curiam operabantur sicut villani T. R. E.'
92. D. B. i. 219.
93. D. B. i. 174 b: 'Ipsi radmans secabant una die in anno et
omne servitium quod eis iubebatur faciebant.' The position of
these tenants will be discussed hereafter in connexion with St.
Oswald's charters.
94. D. B.. i. 16 b: 'De herbagio, unus porcus de unoquoque
villano qui habet septem porcos.' In the margin stands 'Similiter
per totum Sussex.'
95. D. B. i. 12 b: 'Ibi tantum silvae unde exeunt de pasnagio 40
porci aut 54 denarii et unus obolus.' Ibid. 191 b: 'De
presentacione piscium 12 solidi et 9 denarii.' Ibid. 117 b: 'aut
unum bovem aut 30 denarios.'
96. See above p. 84.
97. D. B. i. 12 b.
98. D. B. i. 11 b, Hamestede.
99. D. B. i. 117 b, Colun.
100. D. B. i. 127, Stibenhede.
101. D. B. i. 179 b, Lene.
102. D. B. i. 12 b, Norborne.
103. D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli.... Hoc
manerium tenent villani ad firmam canonicorum. In dominio nil
habetur.'
104. See above p. 62.
105. This matter will be discussed when we deal with St. Oswald's
charters.
106. Schmid, p. 263 (note). This document is Dr. Liebermann's
Instituta Cnuti (Trans. Rov. Hist. Soc. vii. 77).
107. Schmid, App. ii. 57-9.
108. For the rest, the word túnesman appears in Edgar iv. 8, 13,
in connexion with provisions against the theft of cattle.
109. D. B. i 259, 259 b.
110. Leg. Will. i. 29.
111. D. B. ii. 360 b: 'Hanc terram habet Abbas in vadimonio pro
duabus marcis auri concessu Engelrici quando redimebant Anglici
terras suas.' Sometimes the Englishman gets back his land as a
bedesman: i. 218, 'Hanc terram tenuit pater hujus hominis et
vendere poterit T. R. E. Hanc rex Willelmus in elemosina eidem
concessit'; i. 211, 'Hanc terram tenuit Avigi et potuit dare cui
voluit T R. E. Hanc. ei postea rex Willelmus concessit et per
breve R. Tallebosc commendavit ut eum servaret'; i. 218 b, a
similar case.
112. Dialogus, i. c. 10; Bracton, f. 7. On both passages see
Vinogradoff, Villainage, p. 121.
113. D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber
homo... qui modo effectus est unus de villanis.'
114. D. B. i. 148 b: 'In Merse tenet Ailric de Willelmo 4 hidas
pro uno manerio..... Istemet tenuit T. R. E. sed modo tenet ad
firmam de Willelmo graviter et miserabiliter.'
115. D. B. i. 141: 'Hanc terram sumpsit Petrus vicecomes de isto
sochemanno Regis Willelmi in manu eiusdem Regis pro forisfactura
de gildo Regis se non reddidisse ut homines sui dicunt. Sed
homines de scira non portant vicecomiti testimonium, quia semper
fuit quieta de gildo et de aliis erga Regem quamdiu tenuit,
testante hundret.'
116. D. B. i. 30: 'Ricardus de Tonebrige tenet de hoc manerio
unam virgatam cum silva unde abstulit rusticum qui ibi manebat.'
117. D. B. ii. 282 b: 'et istam consuetudinem constituit illis
Aluricus prepositus in tempore R. Bigot.'
118. D. B. ii. 284 b.
119. D. B. ii. 84 b.
120. D. B. ii. 353 b: 'omnes fuerunt confusi.'
121. D. B. ii. 440 b: 'sed homines inde fuerunt confusi.'
122. D. B. i. 65, Aldeborne.
123. D. B. ii. 18, Berdringas.
124. D. B. ii. 38 b, Tachesteda.
125. Ellis, Introduction, ii. 428. We give Ellis's figures, but
think that he has exaggerated the number of sokemen who were to
be found in 1086.
126. We make considerably more than 900 by counting only those
who are expressly described as sokemen and excluding the many
persons who are simply described as homines capable of selling
their land.
127. Hamilton, Inquisitio, 65.
128. Hamilton, Inquisitio, 77.
129. Thus e.g. D. ii. 87 b: 'Hidingham tenet Garengerus de Rogero
pro 25 acris quas tenuerunt 15 liberi homines T. R. E.'
130. D. B. i. 31.
131. D. B. i. 31 b: 'Et 10 hidas tenebant alodiarii villae'
132. D. B. i. 10 b.
133. D. B. i. 13, Essella.
134. D. B. i. 24.
135. D. B. 83, 83 b.
136. Vinogradoff, Villainage, 89 ff.; Hist. Engl. Law, i. 366 ff.
137. D. B. i. 189 b.
4. The Sokemen
Now of a large part of England we may say that all the
occupiers of land who are not holding 'manors'(1*) will belong to
some of those classes of which we have already spoken. They will
be villeins, bordiers, cottiers, 'boors' or serfs. Here and there
we may find a few persons who are described as liberi homines. In
some of the western counties, Gloucester, Worcester, Hereford,
Shropshire, there are rachenistres or radmans; between the Ribble
and the Mersey we may find a party of drengs. Still it is
generally true that two of those five classes that seem to have
been mentioned in King William's writ,(2*) the sochemanni and the
liberi homines, are largely represented only in certain counties.
They are to be seen in Essex, yet more thickly in Suffolk and
Norfolk. In Lincolnshire nearly half of the rural population
consists of sokemen, though there is no class of persons
described as liberi homines. There are some sokemen in Yorkshire,
but they are not very numerous and there are hardly any liberi
homines. We have seen how in Cambridgeshire and Bedfordshire the
sokemen have fared ill; but still some are left there. Traces of
them may be found in Hertford and Buckingham; they are thick in
Leicester, Nottingham and Northampton; there are some in
Derbyshire. There have been sokemen in Middlesex(3*) and in
Surrey;(4*) but they have been suppressed; a few remain in
Kent;(5*) so we should be rash were we to find anything
characteristically Scandinavian in the sokemen. Even in Suffolk
they are suffering ill at the hands of their new masters,(6*)
while in Cambridgeshire, Bedfordshire, Hertfordshire they have
been suppressed or displaced.
We have now to enter on a difficult task, a discussion of the
relation which exists between these sochemanni and liberi homines
on the one hand and their lord upon the other. The character of
this relation varies from case to case. We may distinguish three
different bonds by which a man may be bound to a lord, a personal
bond, a tenurial bond, a jurisdictional or justiciary bond. But
the language of Domesday Book is not very patient of this
analysis. However, in the second volume we very frequently come
upon two ideas which are sharply contrasted with each other; the
one is expressed by the term commendatio, the other by the term
soca.(7*) To these we must add the great vague term consuetudo,
and we shall also have to consider the phrases which describe the
various degrees of that freedom of 'withdrawing himself with his
land' that a man may enjoy.
In order that we may become familiar with the use made of
these terms and phrases we will transcribe a few typical entries:
Two free men, of whom AElfwin had not even the
commendation.(8*)
Of these men Harold had not even the commendation.(9*)
Thus commendation seems put before us as the slightest bond
that there can be between lord and man. Very often we are told
that the lord had the commendation and nothing more.(10*) Thus it
is contrasted with the soke: --
His predecessor had only the commendation of this, and Harold
had the soke.(11*)
Of these six free men St Benet had the soke, and of one of
them the commendation.(12*)
And the commendation is contrasted with the 'custom,' the
consuetudo, perhaps we might say the 'service': --
Of the said sokeman Ralph Peverel had a custom of 3 shillings
a year, but in the Confessor's time his ancestor had only the
commendation.(13*)
R. Malet claims 18 free men, 3 of them by commendation, and
the rest for all custom.(14*)
And the soke is contrasted with the consuetudo: --
To this manor belong 4 men for all custom, and other 4 for
soke only.(15*)
In a given case all these bonds may be united: --
There are 7 sokemen who are the Saint's men with sake and
soke and all custom.(16*)
Over this man the Saint has sake and soke and commendation
with all custom.(17*)
Then if the man 'withdraws,' or gives or sells his land, we
often read of the soke 'remaining'; we sometimes read of the
commendation, the custom, the service 'remaining'.
These free men could sell or give their land, but the
commendation and the soke and sake would remain to St.
Edmund.(18*)
These men could sell their land, but the soke would remain to
the Saint and the service (servitium), whoever might be the
buyer.(19*)
They could give and sell their land, but the soke and the
commendation and the service would remain to the Saint.(20*)
But after all, these distinctions are not maintained with
rigour, for the soke is sometimes spoken of as though it were a
species of consuetudo. We have a tangled skein in our hands.
The thread that looks as if it would be the easiest to
unravel, is that which is styled 'mere commendation.' The same
idea is expressed by other phrases -- 'he committed himself to
Bishop Herman for his defence'(21*) -- 'they submitted themselves
with their land to the abbey for defence'(22*) -- 'he became the
man of Goisfrid of his own free will'(23*) -- 'she put herself
with her land in the hand of the queen.'(24*) 'Homage' is not a
common term in Domesday Book, but if, when speaking of the old
time, it says, as it constantly does, that one person was the man
of another, no doubt it is telling us of a relationship which had
its origin in an oath and a symbolic ceremony.(25*) 'She put
herself into the hands of the queen' -- we should take these
words to mean just what they say. An Anglo-Saxon oath of fealty
(hyldád) has been preserved.(26*) The swearer promises to be
faithful and true to his lord, to love all that his lord loves
and eschew all that his lord eschews. He makes no distinct
reference to any land, but he refers to some compact which exists
between him and his lord: -- He will be faithful and true on
condition that his lord treats him according to his deserts and
according to the covenant that has been established between them.
To all seeming there need not be any land in the case; and,
if the man has land, the act of commendation will not give the
lord as a matter of course any rights in that land. Certainly
Domesday Book seems to assume that in general every owner or
holder of land must have had a lord. This assumption is very
worthy of notice. A law of AEthelstan(27*) had said that lordless
men 'of whom no right could be had' were to have lords, but this
command seems aimed at the landless folk, not at those whose land
is a sufficient surety for their good behaviour. The law had not
directly commanded the landed men to commend themselves, but it
had supplied them with motives for so doing.(28*) What did a man
gain by this act of submission? Of advantages that might be
called 'extra-legal' we will say nothing though in the wild days
of AEthelred the Unready, and even during the Confessor's reign,
there was lawlessness enough to make the small proprietor wish
that he had a mightier friend than the law could be. But there
were distinct legal advantages to be had by commendation. In the
first place, the life of the great man's man was protected not
only by a wer-gild, but by a man-bót: -- a man-bót due to one who
had the power to exact it; and if, as one of our authorities
assures us, the amount of the man-bót varied with the rank of the
lord,(29*) this would help to account for a remarkable fact
disclosed by Domesday Book, namely, that the chosen lord was
usually a person of the very highest rank, an earl, an
archbishop, the king. Then, again, if the man got into a scrape,
his lord might be of service to him. Suppose the man accused of
theft: in certain cases he might escape with a single, instead of
a triple ordeal, if he had a lord who would swear to his good
character.(30*) In yet other cases his lord would come forward as
his compurgator; perhaps he was morally bound to do so; and,
being a man of high rank, would swear a crushing oath. And within
certain limits that we cannot well define the lord might warrant
the doings of his man, might take upon himself the task of
defending an action to which this man was subjected.(31*) What
the man has sought by his submission is defensio, tuitio; the
lord is his defensor, tutor, protector, advocatus, in a word, his
warrantor.(32*)
Of warranty we are accustomed to think chiefly in connexion
with the title to land: -- the feoffor warrants the feoffee in
his enjoyment of the tenement. But to all appearance in the
eleventh century it is rather as lord than as giver, seller or
lender, that the vouchee comes to the defence of his man. If the
land is conceived as having once been the warrantor's land, this
may be but a fiction: -- the man has given up his land and then
taken it again merely in order that he may be able to say with
some truth that he has it by his lord's gift. But we cannot be
sure that as yet any such fiction is necessary. 'I will defend
any action that is brought against you for this land': -- as yet
men see no reason why such a promise as this, if made with due
ceremony, should not be enforced. A certain amount of
'maintenance' is desirable in their eyes and laudable.
Though we began with the statement that where there is
commendation there may yet be no land in the case, we have none
the less been already led to the supposition that often enough
land does get involved in this nexus between man and lord. No
doubt a landless man may commend himself and get no land in
return for his homage; but with such an one Domesday Book is not
concerned. The cases in which it takes an interest are those in
which a landholder has commended himself. Now we dare not say
that a landholder can never commend himself without commending
his land also.(33*) Howbeit, the usual practice certainly is that
a man who submits or commits himself for 'defence' or
'protection' shall take his land with him; he 'goes with his
land' to a lord. Very curious are some of the instances which
show how large a liberty men have enjoyed of taking land wherever
they please. 'Tostig bought this land from the church of
Malmesbury for three lives': -- in this there is nothing strange;
leases for three lives granted by churches to thegns have been
common. But of course we should assume that during the lease the
land could have no other lord than the church of Malmesbury. Not
so, however, for during his lease Tostig 'could go with that land
to whatever lord he pleased.'(34*) In Essex there was before the
Conquest a man who held land; that land in some sort belonged to
the Abbey of Barking, and could not be separated from the abbey;
but the holder of it was the man ('merely the man' say the
jurors) of one Leofhild the predecessor of Geoffrey de
Mandeville.(35*) In this last case we may satisfy ourselves by
saving that a purely personal relation is distinguished from a
tenurial relation; the man of Leofhild is the tenant of the
abbey. But what of Tostig's case? Land that he holds of the
church of Malmesbury, and that too by no perpetual tenure, he can
commend to another lord. From the man's point of view,
protection, defence, warranty, is the essence of commendation,
and the warranty that he chiefly needs is the warranty of his
possession, of the title by which he holds his land. it cannot
but be therefore that the lord to whom he commends himself and
his land, should be in some sort his landlord.
Not that he need pay rent, or perform other services in
return for the land. The land is his land; he has not obtained it
from his lord; on the contrary he has carried it to his lord.
Mere commendation is therefore distinguished by a score of
entries from a relation that involves the payment of
consuetudines. Doubtless however the lord obtains 'a valuable
consideration' for all that he gives. Part of this will probably
lie without the legal sphere. He has a sworn retainer who will
fight whenever he is told to fight. But even the law allows the
man to go great lengths in his lord's defence.(36*) In a rough
age happy is the lord who has many sworn to defend him. When at a
later time we see that the claimant of land must offer proof 'by
the body of a certain free man of his,' we are taught that the
lords have relied upon the testimony and the strong right arms of
their vassals. That in all cases the lord got more than this we
cannot say, though perhaps commendation carried with it the right
to the heriot, the horse and armour of the dead man.(37*) The
relation is often put before us as temporary. Numerous are the
persons who 'can seek lords where they choose' or who can 'go
with their land wherever they please.' How large a liberty these
phrases accord to lord and man it were hard to tell. We cannot
believe that either party to the contract could dissolve it just
at the moment when the other had some need to enforce it; but
still at other times the man might dissolve it, and we may
suppose that the lord could do so too. But the connexion might be
of a more permanent kind. Perhaps in most cases in which we are
told that a man cannot withdraw his land from his lord the bond
between them is regarded as something other than commendation --
there is commendation and something more. But this is no
universal truth. You might be the lord's man 'merely by
commendation' and yet be unable to sell your land without the
lord's leave.(38*) At any rate, in one way and another 'the
commendation' is considered as capable of binding the land. The
commended man will be spoken of as holding the land under (sub)
his lord, if not of (de) his lord.(39*) In many cases if he sells
the land 'the commendation will remain to his lord' -- by which
is meant, not that the vendor will continue to be the man of that
lord (for the purposes of the Domesday inquest this would be a
matter of indifference) but that the lord's rights over the land
are not destroyed. The purchaser comes to the land and finds the
commendation inhering in it.(40*)
And so, again, the lord's rights under the commendation seem
to constitute an alienable and heritable seignory. It is thus
that we may best explain the case, very common in East Anglia, in
which a man is commended half to one and half to another
lord.(41*) Thus we read of a case in which a free man was
commended, as to one-third to Wulfsige, and as to the residue to
Wulfsige's two brothers.(42*) In this instance it seems clear
that the commendation has descended to three co-heirs. In other
cases a lord may have made over his rights to two religious
houses; thus we hear of a man who is common to the Abbots of Ely
and St. Edmund's.(43*) In some cases a man may, in others he may
not, be able to prevent himself being transferred from lord to
lord, or from ancestor to heir. What passes by alienation or
inheritance may be regarded rather as a right to his commendation
than as the commendation itself.(44*) Of course there is nothing
to hinder one from being the man of several different lords.
AElfric Black held lands of the Abbot of Westminster which he
could not separate from the church, but for other lands he was
the man of Archbishop Stigand.(45*) Already a lofty edifice is
being constructed; B, to whom C is commended, is himself
commended to A; and in this case a certain relation exists
between C and A; C is 'sub-commended' to A.(46*)
In a given case the somewhat vague obligation of the
commended man may be rendered definite by a bargain which imposes
upon him the payment of rent or the performance of some specified
services. When this is so, we shall often find that the land is
moving, if we may so speak, not from the man but from the lord.
The man is taking land from the lord to hold during good
behaviour,(47*) or for life.(48*) or for lives. A form of lease
or loan (loén) which gives the land to the lessee and to two or
three successive heirs of his has from of old been commonly used
by some of the great churches.(49*) Also we see landowners giving
up their land to the churches and taking it back again as mere
life tenants. During their lives the church is to have some
'service,' or at least some 'recognition' of its lordship, while
after their deaths the church will have the land in demesne.(50*)
This is something different from mere commendation. We see here
the feuda oblata or beneficia oblata which foreign jurists have
contrasted with feuda or beneficia data. The land is brought into
the bargain by the man, not by the lord. But often the land comes
from the lord, and the tenancy is no merely temporary tenancy; it
is heritable. The king has provided his thegns with lands; the
earls, the churches, have provided their thegns with lands, and
these thegns have heritable estates, and already they are
conceived as holding them of (de) the churches, the earls, the
king. But we must not as yet be led away into any discussion
about the architecture of the very highest storeys of the feudal
or vassalic edifice. It must at present suffice that in humbler
quarters there has been much letting and hiring of land. The
leases, if we choose to call them so, the gifts, if we choose to
call them so, have created heritable rights and perdurable
relationships.
There is no kind of service that cannot be purchased by a
grant or lease of land. Godric's wife had land from the king
because she fed his dogs.(51*) AElfgyfu the maiden had land from
Godric the sheriff that she might teach his daughter orfrey
work.(52*) The monks of Pershore stipulate that their dominion
shall be recognized by 'a day's farm' in every year, that is,
that the lessee shall once a year furnish the convent with a
day's victual.(53*) The king's thegns between the Ribble and the
Mersey have 'like villeins' to make lodges for the king, and
fisheries and deer-hays, and must send their reapers to cut the
king's crops at harvest time.(54*) The radmen and radknights of
the west must ride on their lord's errands and make themselves
generally useful; they plough and harrow and mow, and do whatever
is commanded them.(55*)
But we would here speak chiefly of the lowly 'free men' and
sokemen of the eastern counties. Besides having their
commendation and their soke, the lord very often has what is
known as their consuetudo or their consuetudines. Often they are
the lord's men de omni consuetudine. In all probability the word
when thus employed, when contrasted with commendation on the one
hand and with soke on the other, points to payments and renders
to be made in money and in kind and to services of an
agricultural character. Of such services only one stands out
prominently; it is very frequently mentioned in the survey of
East Anglia; it is fold-soke, socafaldae. The man must not have a
fold of his own; his sheep must lie in the lord's fold. It is
manure that the lord wants; the demand for manure has played a
large part in the history of the human race. Often enough this is
the one consuetudo, the one definite service, that the lord gets
out of his free mens. And then a man who is consuetus ad faldam,
tied to his lord's fold, is hardly to be considered as being in
all respects a 'free' man. Those who are not 'fold-worthy' are to
be classed with those who are not 'moot-worthy' or 'fyrd-worthy.'
We are tempted to say that a man's caput is diminished by his
having to seek his lord's fold, just as it would be diminished if
he were excluded from the communal courts or the national
host.(56*) From the nature of this one consuetudo and from the
prominence that is given to it, we may guess the character of the
other consuetudines. Suit to the lord's mill would be analogous
to suit to his fold.(57*) Of 'millsoke' we read nothing, but
often enough a surprisingly large part of the total value of a
manor is ascribed to its mill, and we may argue that the lord has
not invested capital in a costly undertaking without making sure
of a return. We may well suppose that like the radmen of the west
the free men and sokemen of the east give their lord some help in
his husbandry at harvest time. From a document which comes to us
from the abbey of Ely, and which is slightly older than the
Domesday inquest, we learn that certain of St Etheldreda's
sokemen in Suffolk had nothing to do but to plough and thresh
whenever the abbot required this of them; others had to plough
and weed and reap, to carry the victual of the monks to the
minster and furnish horses whenever called upon to do so.(58*)
This seems to point rather to 'boon-days' than to continuous
'week-work,' and we observe that the sokemen of the east like the
radmen of the west have horses. Occasionally we learn that a
sokeman has to pay an annual sum of money to his lord; sometimes
this looks like a substantial rent, sometimes like a mere
'recognition'; but the words that most nearly translate our
'rent,' redditus, census, gablum are seldom used in this context.
All is consuetudo.
It is an interesting word. We perhaps are eager to urge the
dilemma that in these cases the land must have been brought into
the bargain either by the lord or by the tenant: -- either the
lord is conceived as having let land to the tenant, or the theory
is that the tenant has commended land to the lord. But the
dilemma is not perfect. It may well be that this relationship is
thought of as having existed from all time; it may well be that
this relationship, though under slowly varying forms, has really
existed for several centuries, and has had its beginning in no
contract, in no bargain. In origin the rights of the lord may be
the rights of kings and ealdormen, rights over subjects rather
than rights over tenants. The word consuetudo covers taxes as
well as rents, and, if the sokeman has to do work for his lord,
very often, especially in Cambridgeshire and Hertfordshire, he
has to do work for the king or for the sheriff also. If he has to
do carrying service for the lord, he has to do carrying service
(avera) for the sheriff also or in lieu thereof to pay a small
sum of money.(59*) And another aspect of this word consuetudo is
interesting to us. Land that is burdened with customs is
customary land (terra consuetudinaria).(60*) As yet this term
does not imply that the tenure, though protected by custom, is
not protected by law; there is no opposition between law and
custom; the customary tenant of Domesday Book is the tenant who
renders customs, and the more customs he renders the more
customary he is.(61*)
This word consuetudo is the widest of words. Perhaps we find
the best equivalent for consuetudines in our own vague.
'dues'.(62*) It covers what we should call rents; it covers what
we should call rates and taxes; but further it covers what we
should call the proceeds and profits of justice: Let us construe
a few entries. At Romney there are burgesses who in return for
the service that they do on the sea are quit of all customs
except three, namely, larceny, peace-breach and ambush.(63*) In
Berkshire King Edward gave to one of his foresters half a hide of
land free from all custom, except the king's forfeiture, such as
larceny, homicide, hám-fare and peace-breach.(64*) In what sense
can a crime be a custom? In a fiscal sense. A crime is a source
of revenue. In what sense should we wish to have our land free of
crimes, free even, if this be possible, of larceny and homicide?
In this sense: -- we should wish that no money whatever should go
out of our land, neither by way of rent, nor by way of tax, rate,
toll, nor yet again by way of forisfactura, of payment for crime
committed. We should wish also that our land with the tenants on
it should be quit or quiet (quieta) from the incursions of royal
and national officers, whether they be in search of taxes or in
search of criminals and the fines due from criminals, and we
should also like to put those fines in our own pockets. Justice
therefore takes its place among the consuetudines: 'larceny' is a
source of income.(65*) A lord who has 'his customs,' is a lord
who has among other sources of revenue, justice or the profits of
justice.(66*) 'Justice or the profits of justice,' we say, for
our record does not care to distinguish between them. It is
thinking of money while we are engaged in questioning it about
the constitution and competence of tribunals. It gives us but
crooked answers. However, we must make the best that can be made
of them, and in particular must form some opinion about the
consuetudines known as sake and soke.
NOTES:
1. We shall see hereafter that some of these so-called 'manors'
are but small plots and their holders small folk.
2. See above p. 47.
3. D. B. i. 128 b, 129, 129 b.
4. D. B. i. 34, 35 b.
5. D. B. i. 13.
6. D. B. ii. 287. There are free men, apparently 120 in number,
of whom it is written: 'Hii liberi homines qui tempore regis
Eduardi pertinebant in soca de Bercolt, unusquisque gratis dabat
preposito per annum 4 tantum denarios, et reddebat socam sicut
lex ferebat, et quando Rogerius Bigot pruis habuit vice-comitatum
statuerunt ministri sui quod redderent 15 libras per annum, quod
non faciebant T. R. E. Et quando Robertus Malet habuit
vicecomitatum sui ministri creverunt illos ad 20 libras. Et
quando Rogerius Bigot eos rehabuit dederunt similiter 20 libras.
Et modo tenet eos Aluricus Wanz tali consuetudine qua erant T. R.
E.' This is a rare instance of a re-establishment of the status
quo ante conquestum.
7. Compare Round, Feudal England, 33.
8. D. B. ii. 187 b: 'Ex his non habuit Ailwinus suus antecessor
etiam commendationem.'
9. D. B. ii. 287: 'De his hominibus... non habuit Haroldus etiam
commendationem.'
10. D. B. ii. 153 b: 'Unde Suus antecessor habuit commendationem
tantum.' Ibid. 154: 'Alstan liber homo Edrici commend[atione]
tantum.'
11. D. B. ii. 161 b.
12. D. B. ii. 244.
13. D. B. ii. 6: 'De predicto sochemano habuit Rad. Piperellus
consuetudinem in unoquoque anno per 3 solidos, set in T. R. E.
non habuit eius antecessor nisi tantum modo commendationem.'
14. D. B. ii. 171 b: 'Calumpniatur R. Malet 18 liberos homines, 3
commendatione et alios de omni consuetudine.'
15. D. B. ii. 250 b: 'Huic manerio adiacent semper 4 homines de
omni consuetudine et alii 4 ad socham tantum.'
16. D. B. ii. 356 b.
17. D. B. ii. 357.
18. D. B. ii. 353 b.
19. D. B. ii. 362: 'set soca remaneret sancto et servitium
quicunque terram emeret.'
20. D. B. ii. 358.
21. D. B. i. 58: 'Pater Tori tenuit T. R. E et potuit ire quo
voluit sed pro sua defensione se commisit Hermanno episcopo et
Tori Osmundo episcopo similiter.'
22. D. B. i. 32 b: 'set pro defensione se cum terra abbatiae
summiserunt'
23. D. B. ii. 62 b: 'et T. R. W. effectus est homo Goisfridi
sponte sua.'
24. D. B. i. 36 b: 'T. R. W. femina quae hanc terram tenebat
misit se cum ea in manu reginae.' Ibid 36: 'Quidam liber homo
hanc terram tenens et quo vellet abire valens commisit se in
defensione Walterii pro defensione sua.'
25. D. B. ii. 172: 'Hos calumpniatur Drogo de Befrerere pro
homagio tantum;' This seems equivalent to the common
'commendatione tantum.' D. B. i. 225 b: 'fuerunt homines Burred
et iccirco G. episcopus clamat hominationem eorum.'
26. Schmid, App. x.
27. AEthelst, ii. 2.
28. Also it had declared that every man must have a pledge, and
probably the easiest way of fulfilling this command was to place
oneself under a lord who would put one into a tithing.
29. Leg. Edw. Conf. 12 sect. 5; but this is contradicted by Leg.
Henr. 87, sect. 4.
30. AEthelr. i. 1, sect. 2; compare AEthelr. iii 3, sect. 4.
31. Leg. Hen. 82, sect. 6; 85, sect. 2.
32. D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' Ibid.
103: 'vocavit Ilbodonem ad tutorem et postea non adduxit
tutorem.' Ibid. 31 b: 'revocat eam ad defensorem. D. B. i. 141 b:
142: 'sed Harduinus reclamat Petrum vicecomitem ad protectorem.'
Ibid. 227 b: 'et dicit regem suum advocatum esse.'
33. D. B. ii. 71 b: 'Phenge tenet idem Serlo de R[anulfo
Piperello] quod tenuit liber homo.. qui T. R. W. effectus est
homo antecessoris Ranulfi Piperelli, set terram suam sibi non
dedit.' This however is not quite to the point.
34. D. B. i. 72: 'Toti emit eam T. R. E. de aecclesia
Malmesburiensi ad etatem trium hominum et infra hunc terminum
poterat ire cum ea ad quem vellet dominum.'
35. D. B. ii. 57b: 'Et haec terra quam modo tenet G. fuit in
abbatia de Berchingis sicuti hundret testatur; set ille qui
tenuit hanc terram fuit tantum modo homo [Leuild)] antecessoris
Goisfridi et non potuit istam terram mittere in aliquo loco nisi
in abbatia.'
36. Leg. Hen. 82, sect. 3.
37. D. B. ii. 118 b: 'In burgo [de Tetfort] autem erant 943
burgenses T. R. E. De his habuit Rex omnem consuetudinem. De
istis hominibus erant 36 ita dominice Regis E. ut non possent
esse homines alicuius sine licentia Regis. Alii omnes poterant
esse homines cuiuslibet set semper tamen consuetuedo Regis
remanebat preter herigete.' Compare D. B. i. 336 b. Stamford: 'In
his custodiis sunt 72 mansi sochemanorum, qui habent terras suas
in dominio, et qui petunt dominos ubi volunt, super quos Rex
nichil aliud habet nisi emendationem forisfacturae eorum et
heriete et theloneum.' In this case commendation would not carry
the heriot with it.
38. D. B. ii. 201: 'Liber homo de 80 acris terrae Almari episcopi
et Alwoldi abbatis commend[atione] tantum, suam nec vendere.' et
hic homo erat monasterio quod non potuit dare terram suam nec
vendere.' See another entry of the same kind on the same page.
39. D. B. i. 50 b: "Hic Alwinus tenuit hanc terram T. R. E. sub
Wigoto pro tuitione; modo tent cam sub Milone.'
40. For example, D. B. ii. 353 b: 'Hii poterant dare et vendere
terram suam T. R. E. set commend[atio] et soca et saca remanebat
S. Edmundo.'
41. D. B. ii. 182 b: ' Ulchetel habuit dimidiam commendationem de
illo T. R. E. et de uxore ipsius totam commendationem.' Ibid. 249
b: 'Medietas istius hominis fuit antecessoris Baingnardi
commendatione tantum et alia medietas S. Edmundi cum dimidia
terra.' The contrast between dimidii homines and integri homines
is common enough. See D. B. ii. 309: one man has a sixth and
another five-sixths of a commendation.
42. D. B. ii. 333 b.
43. D. B. ii. 125 b.
44. D. B. i. 58. Tori 'committed himself for defence' to Bp.
Herman; Tori's son has done the same to Osmund, the successor of
Herman.
45. D. B. i. 133: 'sed pro aliis terris homo archiepiscopi
Stigandi fuit.'
46. On the whole this seems to be the meaning of
'subcommendation.' We read a good deal of men who were
sub-commended to the antecessor of Robert Malet. This seems to be
explained by such an entry as the following (ii. 313 b): 'Eadric
holds two free men who were commended to Eadric, who himself was
commended to (another) Eadric, the antecessor of Robert Malet.'
47. D. B. i. 45 b: 'Quidam frater Edrici tenuit tali conventione,
quod quamdiu bene se haberet erga eum [Edricum] tamdiu terram de
eo teneret, et si vendere vellet, non alicui nisi ei de quo
tenebat vendere vel dare liceret.'
48. Cases of life tenancies will be found in D. B. i. 47,
Stantune; 67 b, Newetone; 80, Catesclive; 177 b, Witune,; ii.
373, 444 b.
49. D. B. i. 46b, 66 b, 72, 175. We shall return to this when in
the next essay we speak of loanland.
50. D. B. i. 67 b: 'Hanc terram reddidit sponte sua aecclesiae
Hardingus qui in vita sua per convent[ionem] debebat tenere.' See
also the case in i. 177 b. Again, ii. 431: 'terram quam cepit cum
uxore sua... misit in ecclesia concedente muliere tali
conventione quod non potuit vendere nec dare de aecclesia.' For a
'recognitio' see i. 175, Persore.
51. D. B. i. 57 b.
52. D. B. i. 149: 'De his tenuit Aluuid puella 2 hidas... et de
dominica firma Regis Edwardi habuit ipsa dimidiam hidam quam
Godricus vicecomes ei concessit quamdiu vicecomes esset, ut illa
doceret filiam ejus aurifrisium operari.'
53. D. B. i. 175: 'Hanc emit quidam Godricus teinus regis Edwardi
vita trium haeredum et dabat in anno monachis unam firmam pro
recognitione.'
54. D. B. i. 269 b.
55. See above p. 83. Their tenure will be discussed hereafter in
connexion with St. Oswald's land-loans.
56. D. B. ii. 187 b: 'In Carletuna 27 liberi homines et dimidius
sub Olfo commendatione tantum et soca falde... 15 liberi homines
sub Olfo soca falde et commendatione tantum.'
57. D. B. ii. 203 b; 'In eadem villa 12 homines 6 quorum erant in
soca falde et alii 6 erant liberi.' Ibid. 361 b: '70 liberi...
super hos homines habet et semper habuit sacam et socam et omnem
eonsuetudinem et ad faldam pertinent omnes preter 4.' Ibid. ii.
207: '17 liberi homines consueti ad faldam et commendati.' The
term 'fold-worthy' occurs in a writ of Edward the Confessor; of
the men of a certain district as are moot-worthy, he gives to St.
Benet of Ramsey soke over such of the men of certain district as
are moot-worthy, fyrd-worthy, and fold-worthy: Earle, Land
Charters, p. 343: Kemble, iv. p. 208.
58. In later extents of East Anglian manors the fold-soke plays
an important part. Cart. Rams. iii. 267: 'R. tenuit unam
carucatam terrae cum falda sua pro octo solidis. A dabat pro
terra sua quadraginta denarios et oves eius erant in falda
Abbatis... H. triginta acras pro quatuor solidis et oves eius
sunt in manu domini....'
59. See the document printed by Hamilton at the end of the
Inquisitio Com. Cantabr. p. 192. 'Isti solummodo arabunt et
contererent messes eiusdem loci quotienscunque abbas
preceperit....' 'Ita proprie sunt abbati ut quotienscunque ipse
preceperit in anno arabunt suam terram, purgabunt et colligent
segetes, portabunt victum monachorum ad monasterium, equos eorum
in suis necessitatibus semper habebit.' For more of this matter
see Round, Foudal England, 30.
60. D. B. i. 141: there are four sokemen who are men of
AEthelmaer and who cannot sell their land without his consent;
but they are under the king's sake and soke and jointly provide
the sheriff with one avera every year or four pence.
61. D. B. i. 249: 'Haec terra fuit consuetudinaria solummodo de
theloneo regis sed aliam socam habebat.'
62. D. B. ii. 273 b: 'In eadem 8 consuetudinarii ad faldam sui
antecessoris.' Ibid. 215: '8 homines consuetudinarios ad hoc
manerium.'
63. D. B. i. 280: 'Dua partes Regis et tercia comitis de censu et
theloneo et forisfactura et de omni consuetudine.' Ibid. 42:
'Unam aecclesiam et 6 capellas cum omni consuetudine vivorum et
mortuorum.'
64. D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni
consuetudine preter tribus, latrocinio, pace infracta, et
forestel.'
65. D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam
custodiendam excepta forisfactura Regis, sicut est latrocinium,
et homidicium, et heinfara, et fracta pax.'
66. D. B. i. 52: 'Hi infrascripti habent in Hantone
consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit
consuetudinaria solummodo de theloneo Regis sed socam aliam
habebat.'
5. SAKE AND SOKE
We may best begin our investigation by recalling the law of
later times. In the thirteenth century seignorial justice, that
is, justice in private hands, has two roots. A certain civil
jurisdiction belongs to the lord as such; if he has tenants
enough to form a court, he is at liberty to hold a court of and
for his tenants. This kind of seignorial justice we call
specifically feudal justice. But very often a lord has other and
greater powers than the feudal principle would give him; in
particular he has the view of frankpledge and the police justice
that the view of frankpledge implies. All such powers must in
theory have their origin in grants made by the king; they are
franchises. With feudal justice therefore we contrast
'franchisal' justice.(1*)
Now if we go back to the Norman period we shall begin to
doubt whether the feudal principle -- the principle which as a
matter of course gives the lord justiciary powers over his
tenants -- is of very ancient origin.(2*) The state of things
that then existed should be revealed to us by the Leges Henrici;
for, if that book has any plan at all, it is a treatise on the
law of jurisdiction, a treatise on 'soke.' To this topic the
writer constantly returns after many digressions, and the leading
theme of his work is found in the following sentence: -- 'As to
the soke of pleas, there is that which belongs properly and
exclusively to the royal fiscus; there is that which it
participates with others; there is that which belongs to the
sheriffs and royal bailiffs as comprised in their ferms; there is
that which belongs to the barons who have soke and sake.(3*) But,
when all has been said, the picture that is left on our minds is
that of a confused conflict between inconsistent and indefinite
principles, and very possibly the compiler in giving us such a
picture is fulfilling the duty of a faithful portrayer of facts,
though he does not satisfy our demand for a rational theory.
On the one hand, it seems plain that there is a seignorial
justice which is not 'franchisal.' Certain persons have a certain
'soke' apart from any regalities which may have been expressly
conceded to them by the king. But it is not clear that the legal
basis of this soke is the simple feudal principle stated above,
namely, that jurisdiction springs from the mere fact of tenure.
An element of which we hear little in later days is prominent in
the Leges, the element of rank or personal status. 'The
archbishops, bishops, earls and other 'powers' (potestates) have
sake and soke, toll, team and infangenethef in their own
lands.(4*) Here the principle seems to be that men of a certain
rank have certain jurisdictional powers, and the vague term
potestates may include in this class all the king's barons. But
then the freeholding vavassores have a certain jurisdiction, they
have the pleas which concern wer and wíte (that is to say
'emendable' pleas) over their own men and their own property, and
sometimes over another man's men who have been arrested or
attached in the act of trespass.(5*) Whatever else we may think
of these vavassores, they are not barons and probably they are
not immediate tenants of the king.(6*) It is clear, however, that
there may be a 'lord' with 'men' who yet has no sake or soke over
them.(7*) We are told indeed that every lord may summon his man
to stand to right in his court, and that if the man be resident
in the remotest manor of the honour of which he holds, he still
must go to the plea.(8*) Here for a moment we seem to have a
fairly clear announcement of what we call the simple feudal
principle, unadulterated by any element of personal rank; still
our text supposes that the lord in question is a great man, he
has no mere manor but an honour or several honours. On the whole,
our law seems for the time to be taking the shape that French law
took. If we leave out of sight the definitely granted franchisal
powers, then we may say that a baron or the holder of a grand
fief has 'high justice,' or, if that term be too technical, a
higher justice, while the vavassor has 'low justice' or a lower
justice. But in this province, as in other provinces, of English
law personal rank becomes of less and less importance. The rules
which would determine it and its consequences are never allowed
to become definite, and in the end a great generalization
surmounts all difficulties: -- every lord has a certain civil
justice over his tenants; whatsoever powers go beyond this, are
franchises.
As to the sort of jurisdiction that a lord of our Leges has,
we can make no statement in general terms. Such categories as
'civil' and 'criminal' are too modern for use. We must of course
except the pleas of the crown, of which a long and ungeneralized
list is set before us.(9*) We must except the pleas of the
church. We must except certain pleas which belong in part to the
king and in part to the church.(10*) Then we observe that the
justice of an archbishop, bishop or earl, probably the justice of
a baron also, extends as high as infangenethef, while that of a
vavassor goes no higher than such offences as are emendable. The
whole matter however is complicated by royal grants. The king may
grant away a demesne manor and retain not only 'the exclusive
soke' (i.e. the soke over the pleas of the crown) but also 'the
common soke' in his hand,(11*) and a great man may by purchase
acquire soke (for example, we may suppose the hundredal soke)
over lands that are not his own.(12*) Then again, we may suspect
that what is said of 'soke' in general does not apply to any
jurisdiction that a lord may exercise over his servi and villani.
As to the servi, very possibly the lord's right over them is
still conceived as proprietary rather than jurisdictional, while
for his villani (serf and villein are not yet convertible terms)
the lord, whatever his rank may be, will probably hold a
'hallmoot'(13*) and exercise that 'common soke' which does not
infringe the royal preserves. On the whole, the law of the
thirteenth century seems to evolve itself somewhat easily out of
the law of these Leges, the process of development being
threefold: (1) the lord's rank as bishop, abbot, earl, baron,
becomes unimportant; (2) the element of tenure becomes
all-important; the mere fact that the man holds land of the lord
makes him the lord's justiciable; thus a generalization becomes
possible which permits even so lowly a person as a burgess of
Dunstable to hold a court for his tenants;(14*) (3) the
obsolescence of the old law of wíte and wer the growth of the new
law of felony, the emergence in Glanvill's book of the
distinction between criminal and civil pleas as a grand primary
distinction, the introduction of the specially royal processes of
presentment and inquest, bring about a new apportionment of the
field of justice and a rational demarcation of feudal from
franchisal powers. Still when we see the lords, especially the
prelates of the church, relying upon prescription for their
choicest franchises,(15*) we may learn (if such a lesson be
needed) that new theories could not master all the ancient facts.
Whether the Conqueror or either of his sons would have
admitted that any justice could be done in England that was not
his justice, we may fairly doubt. They issued numerous charters
which had no other object than that of giving or confirming to
the donees 'their sake and soke,' and, so far as we can see,
there is no jurisdiction, at least none over free men, that is
not accounted to be 'sake and soke.' Occasionally it is said that
the donees are to have 'their court.' However far the
feudalization of justice had gone either in Normandy or in
England before the Conquest, the Conquest itself was likely to
conceal from view the question whether or no all seignorial
jurisdiction is delegated from above; for thenceforward every lay
tenant in chief, as no mere matter of theory, but as a plain
matter of fact, held his land by a title derived newly and
immediately from the king. Thus it would be easy for the king to
maintain that, if the lords exercised jurisdictional powers, they
did so by virtue of his grant, an expressed grant or an implied
grant. Gradually the process of subinfeudation would make the
theoretical question prominent and pressing, for certainly the
Norman nobles conceived that, even if their justice was delegated
to them by the king, no rule of law prevented them from
appointing sub-delegates. If they claimed to give away land, they
claimed also to give away justice, and no earnest effort can have
been made to prevent their doing this.(16*)
Returning from this brief digression, we must consider sake
and soke as they are in Domesday Book. For a moment we will
attend to the words themselves.(17*) Of the two soke is by far
the commoner; indeed we hardly ever find sake except in connexion
with soke, and when we do, it seems just an equivalent for soke.
We have but an alliterative jingle like 'judgment and
justice.'(18*) Apparently it matters little or nothing whether we
say of a lord that he has soke, or that he has sake, Or that he
has soke and sake. But not only is soke the commoner, it is also
the wider word; we can not substitute sake for it in all
contexts. Thus, for example, we say that a man renders soke to
his lord or to his lord's manor; also we say that a piece of land
is a soke of such and such a manor; no similar use is made of
sake.
Now as a matter of etymology sake seems the easier of the two
words. It is the Anglo-Saxon sacu, the German Sache, a thing, a
matter, and hence a 'matter' or 'cause' in the lawyer's sense of
these terms, a 'matter' in dispute between litigants, a 'cause'
before the court. It is still in use among us, for though we do
not speak of a sake between two persons, we do speak of a man
acting for another's sake, or for God's sake, or for the sake of
money.(19*) In Latin therefore sake may be rendered by placitum:
-- 'Roger has sake over them' will become 'Rogerius habet placita
super eos'.(20*) Roger has the right to hold plea over them. Thus
easily enough sake becomes the right to have a court and to do
justice.
As to soke, this has a very similar signification, but the
route by which it attains that signification is somewhat
doubtful. We must start with this that soke, socna, soca, is the
Anglo-Saxon, socn and has for its primary meaning a seeking. It
may become connected with justice or jurisdiction by one or by
both of two ways. One of these is explained by a passage in the
Leges Henrici which says that the king has certain causes or
pleas 'in socna i.e. quaestione sua.' The king has certain pleas
within his investigation, or his right to investigate. A later
phrase may help us: -- the king is entitled to 'inquire of, hear
and determine' these matters.(21*) But the word might journey
along another path which would lead to much the same end. It
means seeking, following, suing, making suit, sequi, sectam,
facere. The duty known as socafaldae is the duty of seeking the
lord's fold. Thus soca may be the duty of seeking or suing at the
lord's court and the correlative right of the lord to keep a
court and exact suit. Without denying that the word has traversed
the first of the two routes, the route by way of 'investigation'
-- in the face of the Leges Henrici we can hardly deny this -- we
may confidently assert that it has traversed the second, the
route by way of 'suit'. There are several passages which assure
us that soke is a genus of which fold-soke is a species. Thus: --
'Of these men Peter's predecessor had fold-soke and commendation
and Stigand had the other soke.'(22*) In a document which is very
closely connected with the great survey we find what seems to be
a Latin translation of our word. The churches of Worcester and
Evesham were quarrelling about certain lands at Hamton. Under the
eye of the king's commissioners they came to a compromise, which
declared that the fifteen hides at Hamton belonged to the bishop
of Worcester's hundred of Oswaldslaw and ought to pay the king's
geld and perform the king's services along with the bishop and
ought 'to seek the said hundred for pleading': -- requirere ad
placitandum, this is the main kind of 'seeking' that soke
implies.(23*) If we look back far enough in the Anglo-Saxon
dooms, there is indeed much to make us think that the act of
seeking a lord and placing oneself under his protection, and the
consequences of that act, the relation between man and lord, the
fealty promised by the one, the warranty due from the other, have
been known as sócn.(24*) If so, then there may have been a time
when commendation and soke were all one. But this time must be
already ancient, for although we do not know what English word
was represented by commendatio, still there is no distinction
more emphatically drawn by Domesday Book than that between
commendatio and soca.
Now when we meet with soca in the Leges Henrici we naturally
construe it by some such terms as 'jurisdiction', 'justice,' 'the
right to hold a court.' We have seen that the author of that
treatise renders it by the Latin quaestio. We also meet the
following phrases which seem clear enough: -- 'Every cause shall
be determined in the hundred, or in the county, or in the
hallmoot of those who have soke, or in the courts of the
lords;(25*) '... according to the soke of pleas, which some have
in their own land over their own men, some over their own men and
strangers, either in all causes or in some causes':(26*)...
'grithbrice or hámsócn or any of those matters which exceed their
soke and sake':(27*) 'in capital causes the soke is the
king's.'(28*) So again our author explains that though a baron
has soke this will not give him a right to justice over himself;
no one, he says, can have his own forfeiture; no one has a soke
of impunity: 'nullus enim socnam habet impune peccandi.'(29*) The
use that Domesday Book makes of the word may not be quite so
clear. Sometimes we are inclined to render it by suit, in
particular when fold-soke is contrasted with 'other soke.' But
very generally we must construe it by justice or by justiciary
rights, though we must be careful not to introduce the seignorial
court where it does not exist, and to remember that a lord may be
entitled to receive the wites or fines incurred by his criminous
men without holding a court for them. Those men may be tried and
condemned in a hundred court, but the wite will be paid to their
lord. Then the word is applied to tracts of land. A tract over
which a lord has justiciary power, or a wite-exacting power, is
his soke, and very often his soke is contrasted with those other
lands over which he has rights of a more definitely proprietary
kind. But we must turn from words to law.
Already before the Conquest there was plenty of seignorial
justice in England. The greatest of the Anglo-Saxon lords had
enjoyed wide and high justiciary rights. Naturally it is of the
rights of the churches that we hear most, for the rights that
they had under King Edward they still claim under King William.
Foremost among them we may notice the church of Canterbury. On
the great day at Penenden Heath, Lanfranc proved that throughout
the lands of his church in Kent the king had but three rights;
all other justice was in the hands of the archbishop.(30*) In
Warwickshire the Archbishop of York has soke and sake, toll and
team, church-scot and all other 'forfeitures' save those four
which the king has throughout the whole realm.(31*) These four
forfeitures are probably the four reserved pleas of the crown
that are mentioned in the laws of Cnut -- mundbryce, hámsócn,
forsteal and fyrdwíte.(32*) But even these rights though usually
reserved to the king may have been made over to the lord. In
Yorkshire neither king nor earl has any 'custom' within the lands
of St Peter of York, St John of Beverley, St Wilfrid of Ripon, St
Cuthbert of Durham and the Holy Trinity. We are asked specially
to note that in this region there are four royal highways, three
by land and one by water where the king claims all forfeitures
even when they run through the land of the archbishop or of the
earl.(33*) Within this immense manor of Taunton the Bishop of
Winchester has pleas of the highest class, and three times a year
without any summons his men must meet to hold them.(34*) In
Worcestershire seven of the twelve hundreds into which the county
is divided are in the heads of four great churches; Worcester has
three, Westminster two, Evesham one, Pershore one. Westminster
holds its lands as freely as the king held them in his demesne;
Pershore enjoys all the pleas of the free men; no sheriff can
claim anything within the territory of St Mary of Worcester,
neither in any plea, nor in any other matter.(35*) In East Anglia
we frequently hear of the reserved pleas of the crown. In this
Danish district they are accounted to be six in number; probably
they are grídbrice, hámsócn, fihtwíte and fyrdwíte, outlaw's-work
and the receipt of outlaws.(36*) Often we read how over the men
of some lord the king and the earl have 'the six forfeitures,' or
how 'the soke of the six forfeitures' lies in some royal
manor.(37*) But then there is a large tract in which these six
forfeitures belong to St Edmund; some other lord may have sake
and soke in a given parcel of that tract, but the six forfeitures
belong to St Edmund; they are indeed 'the six forfeitures of St
Edmund.'(38*) Other arrangements were possible. We hear of men
over whom St Benet had three forfeitures.(39*) The lawmen of
Stamford had sake and soke within their houses and over their
men, save geld, heriot, larceny and forfeitures exceeding 40 ores
of silver.(40*) Certain burgesses of Romney serve the king on the
sea, and therefore they have their own forfeitures, save larceny,
peace-breach and forsteal, and these belong, not to the king, but
to the archbishop.(41*) Sometimes King William will be careful to
limit his confirmation of a lord's sake and soke to the
'emendable forfeitures,' the offences which can be paid for with
money.(42*)
That in the Confessor's day justiciary rights could only be
claimed by virtue of royal grants, that they did not arise out of
the mere relation between lord and man, lord and tenant, or lord
and villein, seems to us fairly certain. In the first place, as
already said, soke is frequently contrasted with commendation. In
the second place, as we turn over the pages of our record, we
shall see it remarked of some man, who held a manor in the days
before the Conquest, that he had it with sake and soke, and the
remark is made in such a context that thereby he is singled out
from among his fellows.(43*) Thus it is said of a little group of
villeins and sokemen in Essex that 'their lord had sake and
soke.'(44*) Not that we can argue that a lord has no soke unless
it is expressly ascribed to him. The surveyors have no great
interest in this matter. Sometimes such a phrase as 'he held it
freely' seems to serve as an equivalent for 'he held it with sake
and soke.'(45*) It is said of the Countess Judith, a lady of
exalted rank, that she had a manse in Lincoln without sake and
soke.(46*) Then we are told that throughout the city of
Canterbury the king had sake and soke except in the lands of the
Holy Trinity (Christ Church), St Augustin, Queen Edith, and three
other lords.(47*) We have a list of fifteen persons who had sake
and soke in the two lathes of Sutton and Aylesford,(48*) a list
of thirty-five persons who had sake and soke, toll and team in
Lincolnshire (it includes the queen, a bishop, three abbots and
two earls)(49*) and a list of nineteen persons who had similar
rights in the shires of Derby and Nottingham.(50*) Such lists
would have been pointless had any generalization been possible.
Then in East Anglia it is common enough to find that the men who
are reckoned to be the liberi homines of some lord are under the
soke of another lord or render their soke to the king and the
earl, that is to say, to the hundred court. Often enough it is
said somewhat pointedly that the men over whom the king and the
earl have soke are liberi homines, and this may for a moment
suggest that the lord as a matter of course has soke over such of
his men as are not ranked as 'free men'; possibly it may suggest
that freedom in this context implies subjection to a national as
opposed to a seignorial tribunal.(51*) But on the one hand a lord
often enough has soke over those who are distinctively 'free
men,'(52*) while on the other hand, as will be explained below,
he has not the soke over his sokeman.(53*)
But we must go further and say that the lord has not always
the soke over his villeins. This is a matter of much importance.
An entry relating to a manor in Suffolk seems to put it beyond
doubt: -- In the hundred and a half of Sanford Auti a thegn held
Wenham in King Edward's time for a manor and three carucates of
land; there were then nine villani, four bordarii and one servus
and there were two teams on the demesne; Auti had the soke over
his demesne and the soke of the villeins was in Bercolt.(54*) Now
Bercolt, the modern Bergholt, was a royal manor, the seat of a
great court, which had soke over many men in the neighbouring
villages. To all seeming it was the court for the hundred, or
'hundred-and-a-half,' of Sanford.(55*) Here then we seem to have
villeins who are not under the soke of their lord but are the
justiciables of the hundred court. In another case, also from
Suffolk, it is said of the lord of a manor that he had soke 'only
over the demesne of his hall,' and this seems to exclude from the
scope of his justiciary rights the land held by thirty-two
villeins and eight bordiers.(56*) We may find the line drawn at
various places. Not very unfrequently in East Anglia a lord has
the soke over those men who are bound to his sheep-fold, while
those who are 'foldworthy' attend the hundred court.(57*) In one
case a curious and instructive distinction is taken: -- 'In
Farwell lay in King Edward's day the sake and soke of all who had
less than thirty acres, but of all who had thirty acres the soke
and sake lay in the hundred.'(58*) In this case the line seems to
be drawn just below the virgater, no matter the legal class to
which the virgater belongs. To our thinking it is plain enough
that many a manerium of the Confessor's day had no court of its
own. As we shall see hereafter, the manors are often far too
small to allow of our endowing each of them with a court. When of
a Cheshire manor we hear that 'this manor has its pleas in its
lord's hall' we are being told of something that is
exceptional.(59*) In the thirteenth century no one would have
made such a remark. In the eleventh the halimote or hall-moot
looks like a novelty.
Seignorial justice is as yet very closely connected with the
general scheme of national justice. Frequently the lord who has
justice has a hundred. We remember how seven of the twelve
hundreds of Worcestershire are in the hands of four great
churches.(60*) St Etheldreda of Ely has the soke of five and a
half hundreds in Suffolk.(61*) In Essex Swain had the
half-hundred of Clavering, and the pleas thereof brought him in
25s. a year.(62*) In Nottinghamshire the Bishop of Lincoln had
all the customs of the king and the earl throughout the wapentake
of Newark.(63*) The monks of Battle Abbey claimed that the sake
and soke of twenty-two hundreds and a half and all royal
'forfeitures' were annexed to their manor of Wye.(64*) But
further -- and this deserves attention -- when the hundredal
jurisdiction was not in the hands of some other lord, it was
conceived as belonging to the king. The sake and soke of a
hundred or of several hundreds is described as 'lying in,' or
being annexed to, some royal manor and it is farmed by the farmer
of that manor. Oxfordshire gives us the best example of this. The
soke of four and a half hundreds belongs to the royal manor of
Bensington, that of two hundreds to Headington, that of two and a
half to Kirtlington, that of three to Upton, that of three to
Shipton, that of two to Bampton, that of two to Bloxham and
Adderbury.(65*) What we see here we may see elsewhere also.(66*)
If then King William gives the royal manor of Wye to his newly
founded church of St Martin in the Place of Battle, the monks
will contend that they have obtained as an appurtenance the
hundredal soke over a large part of the county of Kent.(67*)
The law seems as yet, if we may so speak, unconscious of the
fact that underneath or beside the hundredal soke a new soke is
growing up. It seems to treat the soke over a man or over a piece
of land as an indivisible thing that must 'lie' somewhere and
cannot be in two places at once. It has indeed to admit that
while one lord has the soke, the king or another lord may have
certain reserved and exalted 'forfeitures,' the three forfeitures
or the four or the six, as the case may be;(68*) but it has no
classification of courts. The lord's court, if it be not the
court of an ancient hundred, is conceived as the court of a
half-hundred, or of a quarter of a hundred,(69*) or as the court
of a district that has been carved out from a hundred.(70*) Thus
Stigand had the soke of the half-hundred of Hersham, save Thorpe
which belonged to St Edmund, and Pulham which belonged to St
Etheldreda;(71*) thus also the king had the soke of the
half-hundred of Diss, except the land of St. Edmund, where he
shared the soke with the saint, and except the lands of Wulfgaet
and of Stigand.(72*) But it is impossible to maintain this
theory. The hundred is becoming full of manors, within each of
which a lord is exercising or endeavouring to exercise a soke
over all, or certain classes, of his men. It is possible that in
Lincolnshire we see the beginnings of a differentiating process;
we meet with the word frisoca, frigsoca, frigesoca. Whether this
stands for 'free soken,' or, as seems more likely, for 'frid
soken,' soke in matter relating to the peace, it seems to mark
off one kind of soke from other kinds.(73*) We have to remember
that in later days the relation of the manorial to the hundredal
courts is curious. In no accurate sense can we say that the court
of the manor is below the court of the hundred. No appeal, no
complaint of false judgment, lies from the one to the other; and
yet, unless the manor enjoys some exceptional privilege, it is
not extra-hundredal and its jurisdiction in personal causes is
over-lapped by the jurisdiction of the hundred court: the two
courts arise from different principles.(74*) In Domesday Book the
feudal or tenurial principle seems still struggling for
recognition. Already the Norman lords are assuming a soke which
their antecessores did not enjoy.(75*) As will be seen below,
they are enlarging and consolidating their manors and thereby
rendering a manorial justice possible and profitable. Whether we
ought to hold that the mere shock and jar of conquest and
dispossession was sufficient to set up the process which covered
our land with small courts, or whether we ought to hold that an
element of foreign law worked the change, is a question that will
never be answered unless the Norman archives have yet many
secrets to tell. The great 'honorial' courts of later days may be
French; still it is hardly in this region that we should look for
much foreign law. It is in English words that the French baron of
the Conqueror's day must speak when he claims justiciary rights.
But that the process was far from being complete in 1086 seems
evident.
Many questions about the distribution and the constitution of
the courts we must leave unsolved. Not only does our record tell
us nothing of courts in unambiguous words, but it hardly has a
word that will answer to our 'court.' The term curia is in use,
but it seems always to signify a physical object, the lord's
house or the court-yard around it, never an institution, a
tribunal.(76*) Almost all that we are told is conveyed to us
under the cover of such words as sake, soke, placita,
forisfacturae. We know that the Bishop of Winchester has a court
at Taunton, for his tenants are bound to come together thrice a
year to hold his pleas without being summoned.(77*) This phrase
-- 'to hold his pleas' -- seems to tell us distinctly enough that
the suitors are the doomsmen of the court. Then, again, we have
the well-known story of what happened at Orwell in
Cambridgeshire. In that village Count Roger had a small estate;
he had land for a team and a half. This land had belonged to six
sokemen. He had borrowed three of them from Picot the sheriff in
order that they might hold his pleas, and having got them he
refused to return them.(78*) That the court that he wished to
hold was a court merely for his land at Orwell is highly
improbable, but he had other lands scattered about in the various
villages of the Wetherly hundred, though all his tenants amounted
to but 14 villeins, 42 bordiers, 15 cottiers, and 4 serfs. We
cannot draw the inference that men of the class known as sokemen
were necessary for the constitution of a court, for at the date
of the survey there was no sokeman left in all Roger's land in
Cambridgeshire; the three that he borrowed from Picot had
disappeared or were reckoned as villeins or worse. Still he held
a court and that court had doomsmen. But we cannot argue that
every lord who had soke, or sake and soke, had a court of his
own. It may be that in some cases he was satisfied with claiming
the 'forfeitures' which his men incurred in the hundred courts.
This is suggested to us by what we read of the earl's third
penny.
In the county court and in every hundred court that has not
passed into private hands, the king is entitled to but two-thirds
of the proceeds of justice and the earl gets the other third,
except perhaps in certain exceptional cases in which the king has
the whole profit of some specially royal plea. The soke in the
hundred courts belongs to the king and the earl. And just as the
king's rights as the lord of a hundredal court become bound up
with, and are let to farm with, some royal manor, so the earl's
third penny will be annexed to some comital manor. Thus the third
penny of Dorsetshire was annexed to Earl Harold's manor of
Pireton,(79*) and the third penny of Warwickshire to Earl Edwin's
manor of Cote.(80*) Harold had a manor in Herefordshire to which
belonged the third penny of three hundreds;(81*) Godwin had a
manor in Hampshire to which belonged the third penny of six
hundreds;(82*) the third penny of three Devonian hundreds
belonged to the manor of Blackpool.(83*) Now, at least in some
cases, the king could not by his grants deprive the earl of his
right; the grantee of soke had to take it subject to the earl's
third penny. Thus for the shires of Derby and Nottingham we have
a list of nineteen persons who were entitled to the king's
two-pence, but only three of them were entitled to the earl's
penny.(84*) The monks of Battle declared that throughout many
hundreds in Kent they were entitled to 'the king's two-pence';
the earl's third penny belonged to Odo of Bayeux.(85*) And so of
certain 'free men' in Norfolk it is said that 'their soke is in
the hundred for the third penny.'(86*) A man commits an offence;
he incurs a wíte; two-thirds of it should go to his lord;
one-third to the earl: in what court should he be tried? The
answer that Domesday Book suggests by its silence is that this is
a matter of indifference; it does not care to distinguish between
the right to hold a court and the right to take the profits of
justice. Just once the veil is raised for a moment. In Suffolk
lies the hundred of Blything; its head is the vil of Blythburgh
where there is a royal manor.(87*) Within that hundred lies the
considerable town of Dunwich, which Edric holds as a manor. Now
in Dunwich the king has this custom that two or three men shall
go to the hundred court if they be duly summoned, and if they
make default they shall pay a fine of two ores, and if a thief be
caught there he shall be judged there and corporeal justice shall
be done in Blythburgh and the lord of Dunwich shall have the
thief's chattels. Apparently in this case the lord of Dunwich
will see to the trying but not to the hanging of the thief; but,
at any rate, a rare effort is here made to define how justice
shall be done.(88*) The rarity of such efforts is very
significant. Of course Domesday Book is not a treatise on
jurisdiction; still if there were other terms in use, we should
not be for ever put off with the vague, undifferentiated soke. On
the whole, we take it that the lord who enjoyed soke had a right
to keep a court if he chose to do so, and that generally he did
this, though he would be far from keeping a separate court for
each of his little manors; but if his possessions were small he
may have contented himself with attending the hundred court and
claiming the fines incurred by his men. Sometimes a lord seems to
have soke only over his own demesne lands;(89*) in this case the
wites that will come to him will be few. We may in later times
see some curious compromises. If a thief is caught on the land of
the Prior of Canterbury at Brook in Kent, the borhs-elder and
frank-pledges of Brook are to take him to the court of the
hundred of Wye, which belongs to the Abbot of Battle. Then, if he
is not one of the Prior's men, he will be judged by the hundred.
But if he is the Prior's man, then the bailiff of Brook will
'crave the Prior's court.' The Prior's folk will then go apart
and judge the accused, a few of the hundredors going with them to
act as assessors. If the tribunal thus constituted cannot agree,
then once more the accused will be brought back into the hundred
and will there be judged by the hundredors in common. In this
instance we see that even in Henry II's day the Prior has not
thoroughly extricated his court from the hundred moot.(90*)
It seems possible that a further hint as to the history of
soke is given us by certain entries relating to the boroughs. It
will already have become apparent that if there is soke over men,
there is also soke over land: if men 'render soke' so also acres
'render soke.' We can see that a very elaborate web of rules is
thus woven. One man strikes another. Before we can tell what the
striker ought to pay and to whom he ought to pay it, we ought to
know who had soke over the striker, over the stricken, over the
spot where the blow was given, over the spot where the offender
was attached or arrested or accused. 'The men of Southwark
testify that in King Edward's time no one took toll on the strand
or in the water-street save the king, and if any one in the act
of committing an offence was there challenged, he paid the amends
to the king, but if without being challenged he escaped under a
man who had sake and soke, that man had the. amends.'(91*) Then
we read how at Wallingford certain owners of houses enjoyed 'the
gafol of their houses, and blood, if blood was shed there and the
man was received inside before he was challenged by the king's
reeve, except on Saturday, for then the king had the forfeiture
on account of the market; and for adultery and larceny they had
the forfeiture in their houses, but the other forfeitures were
the king's.'(92*) We cannot hope to recover the intricate rules
which governed these affairs, rules which must have been as
intricate as those of our 'private international law.' But the
description of Wallingford tells us of householders who enjoy the
'forfeitures' which arise from crimes committed in their own
houses, and a suspicion may cross our minds that the right to
these forfeitures is not in its origin a purely jurisdictional or
justiciary right. However, these householders are great people
(the Bishop of Salisbury, the Abbot of St. Albans are among
them), their town houses are considered as appurtenant to their
rural manors and the soke over the manor comprehends the town
house. And so when we read how the twelve lawmen of Stamford had
sake and soke within their houses and over their own men 'save
geld, and heriot, and corporeal forfeitures to the amount of 40
ores of silver and larceny' we may be reading of rights which can
properly be described as justiciary.(93*)
But a much more difficult case comes before us at
Warwick.(94*) We first hear of the town houses that are held by
great men as parts of their manors, and then we hear that
'besides these houses there are in the borough nineteen burgesses
who have nineteen houses with sake and soke and all customs.' Now
we cannot easily believe that the burgess's house is a
jurisdictional area, or that in exacting a mulct from one who
commits a crime in that house the burgess will be playing the
magistrate or exercising a right to do justice or take the
profits of justice by virtue of a grant made to him by the king.
Rather we are likely to see here a relic of the ancient
'house-peace.'(95*) If you commit an act of violence in a man's
house, whatever you may have to pay to the person whom you strike
and to the king, you will also have to make amends to the owner
of the house, even though he be but a ceorl or a boor, for you
have broken his peace.(96*) The right of the burgess to exact a
mulct from one who has shed blood or committed adultery within
his walls may in truth be a right of this kind, and yet, like
other rights to other mulcts, it is now conceived as an emanation
of sake and soke. If in the eleventh century we hear but little
of this householder's right, may this not be because the
householder has surrendered it to his lord, or the lord has
usurped it from the householder, and thus it has gone to swell
the mass of the lord's jurisdictional rights? At Broughton in
Huntingdonshire the Abbot of Ramsey has a manor with some sokemen
upon it 'and these sokemen say that they used to have legerwite
(fornication-fine), bloodwite and larceny up to fourpence, and
above fourpence the Abbot had the forfeiture of larceny.'(97*)
Various interpretations may be set upon this difficult passage.
We may fashion for ourselves a village court (though there are
but ten sokemen) and suppose that the commune of sokemen enjoyed
the smaller fines incurred by any of its members. But we are
inclined to connect this entry with those relating to Wallingford
and to Warwick and to believe that each sokeman has enjoyed a
right to exact a sum of money for the breach of his peace. The
law does not clearly mark off the right of the injured
housefather from the right of the offended magistrate. How could
it do so? If you commit an act of violence you must pay a wite to
the king. Why so? Because you have wronged the king by breaking
his peace and he requires 'amends' from you. With this thought in
our minds we may now approach an obscure problem.
We have said that seignorial justice is regarded as having
its origin in royal grants, and in the main this seems true. We
hardly state an exception to this rule if we say that grantees of
justice become in their turn grantors. Not merely could the earl
who had soke grant this to one of his thegns, but that thegn
would be said to hold the soke 'under' or 'of' the earl. Justice,
we may say, was already being sub-infeudated.(98*) But now and
again we meet with much more startling statements. Usually if a
man over whom his lord has soke 'withdraws himself with his
land,' or 'goes elsewhere with his land,' the lord's soke over
that land 'remains': he still has jurisdictional rights over that
land though it is commended to a new lord. We may be surprised at
being very frequently told that this is the case, for we can
hardly imagine a man having power to take his land out of one
sphere of justice and to put it into another. But that some men,
and they not men of high rank, enjoyed this power seems probable.
Of a Hertfordshire manor we read: 'In this manor there were six
sokemen, men of Archbishop Stigand, and each had one hide, and
they could sell, saving the soke, and one of them could even sell
his soke with the land.'(99*) This case may be exceptional; there
may have been a very unusual compact between the archbishop and
this egregiously free sokeman; but the frequency with which we
are told that on a sale the soke 'remains' does not favour this
supposition.
We seem driven to the conclusion that in some parts of the
country the practice of commendation had been allowed to
interfere with jurisdictional relationships: that there were men
who could 'go with their land to what lord they chose' and carry
with them not merely their homage, but also their suit of court
and their 'forfeitures.' This may seem to us intolerable. If it
be true, it tells us that the state has been very weak; it tells
us that the national scheme of justice has been torn to shreds by
free contract, that men have had the utmost difficulty in
distinguishing between property and political power, between
personal relationships and the magistracy to which land is
subject. But unless we are mistaken, the housepeace in its decay
has helped to produce this confusion. In a certain sense a mere
ceorl has had what is now called a soke -- it used to be called a
mund or grid -- over his house and over his loaf-eaters: that is
to say, he has been entitled to have money paid to him if his
house-peace were broken or his loafeaters beaten. This right he
has been able to transfer to a lord. In one way or another it has
now come into the lord's hand and become mixed up with other
rights. In Henry I's day a lawyer will be explaining that if a
villein receives money when blood is shed or fornication is
committed in his house, this is because he has purchased these
forfeitures from his lord.(100*) This reverses the order of
history.
Such is the best explanation that we can give of the men who
sell their soke with their land. No doubt we are accusing
Domesday Book of being very obscure, of using a single word to
express some three or four different ideas. In some degree the
obscurity may be due to the fact that French justiciars and
French clerks have become the exponents of English law. But we
may gravely doubt whether Englishmen would have produced a result
more intelligible to us. One cause of difficulty we may perhaps
remove. In accordance with common wont we have from time to time
spoken of seignorial jurisdiction. But if the word jurisdiction
be strictly construed, then in all likelihood there never has
been in this country any seignorial jurisdiction. It is not the
part of the lord to declare the law (ius dicere); 'curia domini
debet facere iudicia et non dominus.(101*) From first to last
this seems to be so, unless we take account of theories that come
to us from a time when the lord's court was fast becoming an
obsolete institution.(102*) So it is in Domesday Book. In the
hundred court the sheriff presides; it is he that appoints a day
for the litigation, but the men of the hundred, the men who come
together 'to give and receive right,' make the judgments.(103*)
The tenants of the Bishop of Winchester 'hold the bishops' pleas'
at Taunton; Earl Roger borrows sokemen 'to hold his pleas.'(104*)
Thus the erection of a new court is no very revolutionary
proceeding; it passes unnoticed. If once it be granted that all
the justiciary profits arising from a certain group of men or
tract of land are to go to a certain lord, it is very much a
matter of indifference to kings and sheriffs whether the lord
holds a court of his own or exacts this money in the hundred
court. Indeed, a sheriff may be inclined to say 'I am not going
to do your justice for nothing; do it yourself.' So long as every
lord will come to the hundred court himself or send his steward,
the sheriff will have no lack of capable doomsmen. Then the men
of the lord's precinct may well wish for a court at their doors;
they will be spared the long journey to the hundred court; they
will settle their own affairs and be a law unto themselves. Thus
we ought not to say that the lax use of the word soke covers a
confusion between 'jurisdiction' and the profits of
'jurisdiction, 'and if we say that the confusion is between
justice and the profits of justice, we are pointing to a
distinction which the men of the Confessor's time might regard as
somewhat shadowy. in any case their lord is to have their wites;
in any case they will get the judgment of their peers; what is
left to dispute about is mere geography, the number of the
courts, the demarcation of justiciary areas. We may say, if we
will, that far-sighted men would not have argued in this manner,
for seignorial justice was a force mighty for good and for ill;
but it has not been proved to our satisfaction that the men who
ruled England in the age before the Conquest were far-sighted.
Their work ended in a stupendous failure.
To the sake and soke of the old English law we shall have to
return once more in our next essay. Our discussion of the sake
and soke of Domesday Book was induced by a consideration of the
various bonds which may bind a man to a lord. And now we ought to
understand that in the eastern counties it is extremely common
for a man to be bound to one lord by commendation and to another
lord by soke. Very often indeed a man is commended to one lord,
while the soke over him and over his land 'lies in' some hundred
court which belongs to another lord or is still in the hands of
the king and the earl. How to draw with any exactness the line
between the rights given to the one lord by the commendation and
to the other lord by the soke we cannot tell. For instance, we
find many men who cannot sell their land without the consent of a
lord. This we may usually regard as the result of some term in
the bargain of commendation; but in some cases it may well be the
outcome of soke. Thus at Sturston in Norfolk we see a free man of
St Etheldreda of Ely; his sake and soke belong to Archbishop
Stigand's manor of Earsham (Sturston and Earsham lie some five
miles apart); now this man if he wishes to give or sell his land
must obtain the licence both of St Etheldreda and of
Stigand.(105*) And so as regards the forfeiture of land. We are
perhaps accustomed to think of the escheat propter delictum
tenentis as having its origin in the ideas of homage and tenure
rather than in the justiciary rights of the lord. Howbeit there
is much to make us think that the right to take the land of one
who has forfeited that land by crime was closely connected with
the right to other wites or forisfacturae. 'Of all the thegns who
hold land in the Well wapentake of Lincolnshire, St Mary of
Lincoln had two-thirds of every forisfactura and the earl the
other third; and so of their heriots; and so if they forfeited
their land, two-thirds went to St Mary and the remainder to the
earl.(106*) 'St Mary has not enfeoffed these thegns; but by some
royal grant she has two-thirds of the soke over them. In Suffolk
one Brungar held a small manor with soke. He was a 'free man'
commended to Robert Wimarc's son; but the sake and soke over him
belonged to St Edmund. Unfortunately for Brungar, stolen horses
were found in his house, and we fear that he came to a bad end.
At any rate he drops out of the story. Then St Edmund's Abbot,
who had the sake and soke, and Robert, who had the commendation,
went to law, and right gladly would we have heard the plea; but
they came to some compromise and to all seeming Robert got the
land.(107*) If we are puzzled by this labyrinthine web of legal
relationships, we may console ourselves with the reflection that
the Normans were also puzzled by it. They seem to have felt the
necessity of attributing the lordship of land to one lord and one
only (though of course that lord might have another lord above
him), of consolidating soke with commendation, homage with
justice, and in the end they brought out a simple and symmetrical
result, albeit to the last the relation of seignorial to
hundredal justice is not to be explained by any elegant theory of
feudalism.
Yet another problem shall be stated, though we have little
hope of solving it. The writ, or rather one of the writs, which
defined the scope of the survey seems to have spoken of liberi
homines and sochemanni as of two classes of men that were to be
distinguished from each other. In Essex, Suffolk and Norfolk this
distinction is often drawn. In one and the same manor we shall
find both 'free men' and sokemen;(108*) we may even hear of
sokemen who formerly were 'free men.'(109*) But the import of
this distinction evades us. Sometimes it is said of sokemen that
they 'hold freely.'(110*) We read that four sokemen held this
land of whom three were free, while the fourth had one hide but
could not give or sell it.(111*) This may suggest that the
principle of the division is to be found in the power to alienate
the land, to 'withdraw' with the land to another lord.(112*)
There may be truth in the suggestion, but we cannot square it
with all our cases.(113*) Often enough the 'free man' cannot sell
without the consent of his lord.(114*) We have just met with a
'free man' who had to obtain the consent both of the lord of his
commendation and of the lord of his soke.(115*) On the other
hand, the sokeman who can sell without his lord's leave is no
rare being,(116*) and it was of a sokeman that we read how he
could sell, not only his land, but also his soke.(117*)
Again, we dare not say that while the 'free man' is the
justiciable of a national court, the soke oven the sokeman
belongs to his lond. Neither side of this proposition is true.
Very often the soke over the 'free man' belongs to a church or to
some other lord,(118*) who may or may not be his lord by
commendation.(119*) Very often the lord has not the soke over his
sokemen. This may seem a paradox, but it is true. We make it
cleaner by saying that you may have a man who is your man and who
is a sokeman, but yet you have no soke over him; his soke 'lies'
or 'is rendered' elsewhere. This is a common enough phenomenon,
but it is apt to escape attention. When we are told that a
certain English lord had a sokeman at a certain place, we must
not jump to the conclusion that he had soke over that man of his.
Thus in Hertfordshire AEthelmaer held a manor and in it there
were four sokemen; they were, we are told, his homines: but over
two of them the king had sake and soke.(120*) Unless we are
greatly mistaken, the soke of many of the East Anglian sokemen,
no matter whose men they were, lay in the hundred counts. This
prevents our saying that a sokeman is one over whom his lord has
soke, or one who renders soke to his lord. We may doubt whether
the line between the sokemen and the 'free men' is drawn in
accordance with any one principle. Not only is freedom a matter
of degree, but freedom is measured along several different
scales. At one time it is to the power of alienation or
'withdrawal' that attention is attracted, at another to the
number or the kind of the services and 'customs' that the man
must render to his lord. When we see that in Lincolnshire there
is no class of 'free men' but that there are some eleven thousand
sokemen, we shall probably be persuaded that the distinction
drawn in East Anglia was of no very great importance to the
surveyors or the king. It may have been a matter of pure personal
rank. These liberi homines may have enjoyed a wergild of more
than 200 shillings, for in the Norman age we see traces of a
usage which will not allow that any one is 'free' if he is not
noble.(121*) But perhaps when the Domesday of East Anglia has
been fully explored, hundred by hundred and vill by vill, we
shall come to the conclusion that the 'free men' of one district
would have been called sokemen in another district.(122*)
Some of these sokemen and 'free men' had very small
tenements. Let us look at a list of tenants in Norfolk. 'In
Carleton were 2 free men with 7 acres. In Kicklington were 2 free
men with 2 acres. In Forncett 1 free man with 2 acres. In Tanaton
4 free men with 4 acres. In Wacton 2 free men with 1 1/2 acres.
In Stratton 1 free man with 4 acres. In Moulton 3 free men with 5
acres. In Tibenham 2 free men with 7 acres. In Aslacton 1 free
man with 1 acre.'(123*) These eighteen free men had but sixteen
oxen among them. We think it highly probable that in the survey
of East Anglia one and the same free man is sometimes mentioned
several times; he holds a little land under one lord, and a
little under another lord; but in all he holds little. Then
again, we see that these small freemen often have a few borders
or even a few free men 'below them.'(124*) And then we observe
that, while some of them are spoken of as having belonged to the
manors of their lords, others are reported to have had manors of
their own.
NOTES:
1. Hist. Eng. Law, i. 558. The terms here used were adopted when
the Introduction to the Selden Society's Select Pleas in Manorial
Courts (1888) was being written. M. Esmein in his Cours
d'histoire du droit français, ed. 2 (1895), p. 259, has insisted
on the same distinction but has used other and perhaps apter
terms. According to him 'la justice rendue par les seigneurs' (my
seignorial justice) is either 'la justice seigneuriale' (my
franchisal justice) or 'la justice féodale' (my feudal justice).
2. See Liebermann, Leges Edwardi, p. 88.
3. Leg. Hen. 9, sect. 9.
4. Leg. Henr. 20 sect. 2.
5. Leg. Henr. 27.
6. Hist. Eng. Law, i. 532.
7. Leg. Henr. 57 sect. 8. Cf. 59 sect. 19.
8. Leg. Henr. 55.
9. Leg. Henr. 10. sect. 1.
10. Leg. Henr. 11 sect. 1. This explains the 'participatio' of 9
sect. 9.
11. Leg. Henr. 19.
12. Leg. Henr. 20 sect. 2.
13. Leg. Henr. 9 sect. 4; 20 sect. 2; 57 sect. 8; 78 sect. 2.
14. Hist. Eng. Law, i. 574.
15. Hist. Eng. Law, i. 571.
16. See e.g. Geoffrey Clinton for Kenilworth, Monast. vi. 221:
'Concedo... ut habeant curiam suam... ita libere... sicut ego
meam curiam... ex concessu regis melius et firmius habeo.' Robert
of Ouilly for Osney, ibid. p. 'Volo... quod habeant curiam
ipsorum liberam de suis hominibus de omnimodis transgression et
defalits, et quieti sint tam ipsi quam eorum tenentes de
omnimodis curiae meae sectis.'
17. See Liebermann, Leg. Edw. p. 91.
18. Thus in D. B. ii. 409 we find two successive entries, the 'in
saca regis et comitis' of the one, being to all seeming an
equivalent for the 'in soca regis et comitis' of the other. D. B.
ii. 416: 'de omnibus habuit antecessor Rannulfi commendationem et
sacam excepto uno qui est in soca S. Edmundi.' Ibid. ii. 391 b:
'liberi homines Wisgari cum saca... liber homo... sub Witgaro cum
soca.' In the Iquisitio Eliensis (e.g. Hamilton, p. 109) saca is
sometimes used instead of soca in the common formula 'sed soca
remansit abbati.' In D. B. ii. 264 b, a scribe having written
'sed habet sacam' has afterwards substituted an o for the a; we
have noted no other instance of such care.
19. Hist. Eng. Law, i. 566.
20. D. B. i. 184, Ewias.
21. Leg. Henry. 201. The author of Leg. Edw. Conf., c. 22, also
attempts to connect soke with seeking, but his words are
exceedingly obscure: 'Soche est quod si aliquisquaerit aliquid
interrasua,etiam furtum, sua est iustitia, si inventum sit an
non.' On the whole we take this nonsense to mean that my right of
soke is my right to do justice in case any one seeks (by way of
legal proceedings) anything in my land, even though the
accusation that he brings be one of theft, and even though the
stolen goods have not been found on the thief. Already the word
is a prey to the etymologist.
22. D. B. ii. 256.
23. Heming Cart. i. 75-6: 'quod illae 15 hidae iuste pertinent ad
Osuualdeslaue hundredum episcopi et debent cum ipso episcopo
censum regis solvere et omnia alia servitia ad regem pertinentia
et inde idem requirere ad placitandum.' Another account of the
same transaction, ibid. 77, says 'et [episcopus] deraciocinavit
socam et sacam de Hantoma ad suum hundred Osuualdeslauue quod ibi
debent placitare et geldum et expeditionem et cetera legis
servitia de illis 15 hidis secum debent persolvere.'
24. Schmid, Glossar. s. v. sócen. The word, it would seem, first
makes its way into the vocabulary of the law as describing the
act of seeking a sanctuary and the protection that a criminal
gains by that act. A forged charter of Edgar for Thorney Abbey,
Red Book of Thorney, Camb. Univ. Lib,. f. 4, says that the word
is a Danish word -- 'Regi vero pro consensu et eiusdem mercimonii
licentia ac pro reatus emendatione quam Dani socne usitato
nominant vocabulo, centum dedit splendidissimi auri mancusas.'
25. Leg. Henr. 9 sect. 4.
26. Ibid.
27. Ibid. 22.
28. Ibid. 20 sect. 3.
29. Ibid. 24.
30. Selden's Eadmer, p. 197; Bigelow, Placita Anglo-Norman, p. 7.
31. D. B. i. 238 b, Alvestone.
32. Cnut, ii. 12. We may construe these terms by breach of the
king's special peace, attacks on houses, ambush, neglect of the
summons to the host. In Hereford, D. B. i. 179, the king is
accounted to have three pleas, breach of his peace, hámfare,
which is the same as hámsócn, and forsteal; and besides this he
receives the penalty from a man who wakes default in military
service.
33. D. B. 298 b.
34. D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone,
burgheristh, latrones, pacis infractio, hainfare, denarii de
hundret, et denarii S. Petri; ter in anno teneri placita episcopi
sine ammonitione; profectio in exercitum cum hominibus episcopi.'
See also the English document, Kemble, Cod. Dipl. iv. p. 233. The
odd word burgheristh looks like a corrupt form of burgrid (the
peace of the burh), or of burhgerihta (burhrights, borough-dues),
which word occurs in the English document.
35. D. B. i. 172, 175.
36. Cnut ii. 12, 13, 14. Perhaps when in other parts of England
the pleas of the crown are reckoned to be but four, it is treated
as self-evident that the outlaw falls into the king's hand, as
also the man who harbours an outlaw. If fihtwíte is the right
word, we must suppose with Schmid (p. 586) that a fihtwite was
only paid when there was homicide. A fine mere fighting or
drawing blood would not have been a reserved plea.
37. D. B. ii. 179 b: 'Et iste Withri habebat sacham et socam
super istam terram et rex et comes 6 forisfacturas.' Ibid. 223:
'In Cheiunchala soca de 6 forisfacturis.'
38. D. B. ii. 413 b: 'socam et sacam praeter 6 forisfacturas S.
Eadmundi.' Ibid. 373: 'S. Eadmundus 6 forisfacturas.' Ibid. 384
b: 'Tota hec terra iacebat in dominio Abbatiae [de Eli] T. R. E.
cum omni consuetudine praeter sex forisfacturas S. Eadmundi.'
39. D. B. ii. 244: 'sex liberi homines... ex his habet S.
Benedictus socam et de uno commendationem et de 24 tres
forisfacturas.'
40. D. B. i. 336 b: 'praeter geld et heriete et forisfacturam
corporum Suorum de 40 oris argenti et praeter latronem.' Such a
phrase as 'geld, heriot and thief' is instructive.
41. D. B. i. 4 b.
42. William I for Ely, Hamilton, Inquisitio, p. xviii.: 'omnes
alias forisfacturas quae emendabiles sunt.'
43. D. B. ii. 195: 'Super hos habuit T. R. E. Episcopus 6
forisfacturas sed hundret nee vidit breve nee sigillum nec
concessum Regis.'
44. D. B. ii. 34 b.
45. See e.g. D. B. i. 220.
46. D. B. i. 336: 'Rogerius de Busli habet unum mansum Sueni
filiicum Suaue cum saca et soca. Judita comitissa habet unum
mansum Stori sine saca et soca.'
47. D. B. i. 2.
48. D. B. i. 1 b.
49. D. B. i. 337.
50. D. B. i. 280 b.
51. D. B. ii. 185 : 'Super omnes liberos istius hundreti [de
Northerpingeham] habet Rex sacam et socam.' Ibid. 188 b: 'Rex et
comes de omnibus istis liberis hominibus socam.' Ibid. 203: 'Et
de omnibus his liberis [Episcopi Osberni] soca in hundreto.'
52. D. B. ii. 210: 'Super omnes istos liberos homines habuit Rex
Eadwardus socam et sacam, et postea Guert accepit per vim, sed
Rex Willelmus dedit [S. Eadmundo] cum manerio socam et sacam de
omnibus liberis Guert sicut ipse tenebat; hoc reclamant monachi.'
53. Below, p. 137.
54. D. B. ii. 425 b.
55. D. B. ii. 287, 287 b: 'Sanfort Hund. et dim... Supradictum
manerium scilicet Bercolt... cum soca de hundreto et dimidio
reddebat T. R. E. 24 lib.' On subsequent pages it is often said
that the soke of certain persons or lands is in Bergholt.
56. D. B. ii. 408 b: 'Hagala tenuit Gutmundus sub Rege Edwardo
pro manerio 8 car[ueatarum] terrae cum soca et saca surer
dominium hallae tantum. Tunc 32 villani... 8 bordarii... 10
servi. Semper 4 carucae in dominio. Tunc et post 24 carucae
hominum..,. Sex sochemanni eiusdem Gutmundi de quibus soca est in
hundreto.
57. D. B. ii. 216: 'De Redeham habebat Abbas socam super hos qui
sequebantur faldam, et de aliis soca in hundreto.' Ibid. 129 b:
'Super omnes istos qui faldam Comitis requirebant habebat Comes
socam sacam, super alios omnes Rex et Comes.' Ibid. 194b: 'In
Begetuna et tenuit Episcopus Almarus per emptionem T. R. E. cum
soca et saca de Comite Algaro de bor[dariis] et sequentibus
faldam carucatas terrae.' Ibid. 350 b: 'habebat socam et sacam
super hallam et 3 bordarios.'
58. D. B. ii. 130 b.
59. D. B. i. 265 b: 'Hoc manerium habet suum placitum in aula
domini sui.'
60. Above, p. 118.
61. D. B. ii. 385 b.
62. D. B. ii. 46 b.
63. D. B. i. 283 b.
64. D. B. i. 11 b; Chron. de Bello (Anglia Christiana Soc.) p.
28; Battle Custumals (Camd. Soc.), p. 126.
65. D. B. i. 154b.
66. D. B. 39 b, Hants: 'Huic manerio pertinet soca duorum
hundredorum.' Ibid. 64 b, Wilts: 'In hac firma erant placita
hundretorum de Cicementone et Sutelesberg quae regi pertinebant.'
Ibid. ii. 185: 'Super omnes liberos istius hundreti habet rex
sacam et socam.' Ibid. ii. 113 b: 'Soca et sacha de Grenehou
hundreto pertinet ad Wistune manerium Regis, quicunque ibi
teneat, et habent Rex et Comes.'
67. See above, note 1.
68. Above, p. 119.
69. D. B. ii. 379: 'Super ferting de Almeham habet W. Episcopus
socam et sacam.'
70. D. B. i. 184: 'Haec terra non pertinet... ad hundredum. De
hac terra habet Rogerius 15 sexatarios mellis et 15 porcos quando
homines sunt ibi et placita super eos.'
71. D. B. ii. 139 b.
72. D. B. ii. 114.
73. D. B. i. 340, 346, 357 b, 366, 368 b (ter). See also on f.
344, 344 b, the symbol fd in the margin. The word fridsócn occurs
in AEthelr. VIII, 1 and Cnut i. 23, where it seems to stand for a
sanctuary, an asylum.
74. If one of A's tenants is sued in a personal action in the
hundred court he will have to answer there unless A appears and
'claims his court.' This comes out plainly in certain rolls of
the court of Wisbeach Hundred, which by the kind permission of
the Bishop of Ely, I have examined. On a roll of 33 Edw. I, we
find Stephen Hamond sued for a debt; 'et super hoc venit Prior
Elyensis et petit curiam suam; et Thomas Doreward petit curiam
suam de dicto Stephano residente suo et tenente suo.' The
petition is refused on the ground that Stephen is not his tenant,
and Doreward's prior's petition is refused on the ground that it
is unprecedented
75. D. B. ii. 291: 'Et fuit in soca Regis. Postquam Briennus
habuit, nullam consuetudinem reddidit in hundreto.' Ibid. 240:
'Hoc totum tenuit Lisius pro uno manerio; modo tenet Eudo
successor illius et in T. R. E. soca et saca fuit in hundreto;
set modo tenet Eudo.' -- Ibid. 240 b; 'Soca istius terre T. R. E.
iacuit in Folsa Regis; modo habet Walterius [Giffardus].' --
Ibid. 285 b: the hundred testified that in truth the King and
Earl had the soke and sake in the Confessor's day, but the men of
the vill say that Burchard likewise (similiter) had the soke of
his free men as well as of his villeins.
76. D. B. i. 35 b: 'Duo fratres tenuerunt T. R. E.; unusquisque
habuit domum suam et tamen manserunt in unia curia.' Ibid. 103 b;
'Ibi molendinum serviens curiae.' Ibid. I63: 'arabant et
herciabant ad curiam domini.'
77. D. B. i. 87 b. Kemble, Cod. Dip., iv. p. 233: 'and þriwa
secan gemot on 12 mondum.'
78. D. B. i. 193 b; Hamilton, Inquisitio, 77-9.
79. D. B. i. 75.
80. D. B. i. 238.
81. D. B. i. 186.
82. D. B. i. 38 b.
83. D. B. i. 101.
84. D. B. i. 280 b: 'Hic notantur qui habuerunt socam et sacam et
thol et thaim et consuetudinem Regis 2 denariorum... Horum omnium
nemo habere potuit tercium denarium comitis nisi eius concessu et
hoc quamdiu viveret, preter Archiepiscopum et Ulf Ferisc et
Godeue Comitissam.'
85. See above p. 123, note 1.
86. D. B. ii. 123 b: 'De istis est soca in hundreto ad tercium
denarium.
87. D. B. ii. 282.
88. D. B. ii. 312: 'Rex habet in Duneuuic consuetudinem hanc quod
duo vel tres ibunt ad hundret si recte moniti fuerint, et si hoc
non faciunt, forisfacti sunt de 2 oris, et si latro ibi fuerit
captus ibi judicabitur, et corporalis iusticia in Blieburc
capietur, et sua pecunia remanebit dominio de Duneuuic.' It seems
to us that the first ibi must refer to Dunwich and therefore that
the second does so likewise. Still the passage is ambiguous
enough.
89. See above, p. 121.
90. Battle Custumals (Camden Soc.) 136. This is an interesting
example, for it suggests an explanation of the common claim to
hold a court 'outside' the hundred court (petit curiam suam extra
hundredum). The claimant's men will go apart and hold a little
court by themselves outside 'the four benches' of the hundred.
91. D. B. i. 32: 'et si quis forisfaciens ibi calumpniatus
fuisset, Regi emendabat; si vero non calumpniatus abisset sub eo
qui sacam et socam habuisset, ille emendam de reo haberet.'
Compare with this the account of Guildford, Ibid. 30.
92. D. B. i. 5 6 b.
93. D. B. i. 336 b.
94. D. B. i. 238.
95. The passages from the dooms are collected by Schmid s. v.
Hausfriede, Feohtan.
96. Ine, 6 sect. 3: 'If he fight in the house of a gavel-payer or
boor, let him give 30 shillings by way of wite and 6 shillings to
the boor.'
97. D. B. i. 204.
98. D. B. ii. 419 b: 'Cercesfort tenuit Scapius teinnus
Haroldi... Scapius habuit socam sub Haroldo.' -- Ibid. 313:
'Heroldus socam habuit et Stanuuinus de eo.... Idem Stannuuinus
socam habuit de Heroldo.'
99. D. B. i. 142 b: 'et vendere potuerunt praeter socam; unus
autem corum etiam socam suam cum terra vendere poterat.' comp. D.
B. ii. 230: 'Huic manerio iacent 5 liberi homines ad socam tantum
commend [ati] et 2 de omni consuetudine.' -- Ibid. ii. 59: 'In
Cingeham tenuit Sauinus presbyter 15 acras... in eadem villa
tenuit Etsinus 15 acras... Isti supradicti fuerunt liberi ita
quod ipsi possent vendere terram cum soca et saca ut hundrems
testatur.' -- Ibid. ii. 40 b: 'et iste fuit ita liber quod posset
ire quo vellet cum soca et sacha set tantum fuit homo Wisgari.'
100. Leg. Henr. 81 sect. 3: 'Quidam, villani qui sunt, eiusmodi
leierwitam et blodwitam et huiusmodi minora forisfacta emerunt a
dominis suis, vel quomodo meruerunt, de suis et in suos, quorum
flet-gefoth vel overseunessa est 30 den.; coth seti 15 den.;
servi 6 (al. 5) den.' The flet-gefoth seems to be the sum due for
fighting in a man's flet or house.
101. Munimenta Gildhallae, i. 66.
102. Hist. Eng. Law, i. 580-2.
103. D. B. ii. 424; 'Et dicunt etiam quod istam terram R[anulfus]
calumpniavit supra Radulfum, et vicecomes Rogerius denominavit
illis constitutum tempus m[odo] ut ambo adfuissent; Ranulfo
adveniente defuit Radulfus et iccirco diiudicaverunt homines
hundreti Rannulfum esse saisitum.' -- Ibid. i. 165 b: 'Modo iacet
in Bernitone hundredo iudicio hominum eiusdem hundredi.' -- Ibid.
i. 58 b: 'unde iudicium non dixerunt, sed ante Regem ut iudicet
dimiserunt.' -- Ibid. 182 b; 'In isto hundredo ad placita
conveniunt qui ibi manent ut rectum faciant et accipiant.'
104. Above, p. 125.
105. D. B. ii. 186: 'In Sterestuna tenuit 1 liber homo S. Aldrede
T. R. E. et Stigandi erat soca et saco in Hersam, set nec dare
nec vendere poterat terram suam sine licentia S. Aldrede et
Stigandi.'
106. D. B. ii. 376.
107. D. B. ii. 401 b: 'Eodem tempore fuerunt furati equi inventi
in domo istius Brungari, ita quod Abbas cuius fuit soca et saca
et Rodbertus qui habuit commendationem super istum venerunt de
hoc furto ad placitum, et sicut hundret testatur discesserunt
amicabiliter sine iudicio quod vidissed (sic) hundret.'
108. E.g. D. B. ii. 35 b: 'quas tenuerunt 2 sochemanni et 1 liber
homo.'
109. D. B. ii. 28 b: 'Huic manerio iacent 5 sochenmanni quorum 2
occupavit Ingelricus tempore Regis Willelmi qui tunc erant liberi
homines.'
110. D. B. ii. 83: '3 sochemanni tenentes libere.' -- Ibid. 88 b:
'tunc fuit 1 sochemannus qui libere tenuit 1 virgatam.' -- Ibid.
58: 'in hac terra sunt 13 sochemanni qui libere tenent.'
111. D. B. i. 212 b, Bedf.: 'Hanc terram tenuerunt 4 sochemanni
quorum 3 liberi fuerunt, quartus vero unam hidam habuit, sed nec
dare nec vender.e potuit.'
112. D. B. i. 35 b, 'Isti liberi homines ita liberi fuerunt quod
poterant ire quo volebant.' -- Ibid. ii. 187: '5 homines... ex
istis erant 4 liberi ut non possent recedere nisi dando 2
solidos.'
113. Round, Feudal England, 34.
114. D. B. ii. 59 b, Essex: 'quod tenuerunt 2 liberi homines...
set non poterant recedere sine liceintia illius Algari.' -- Ibid.
216 b, Norf.: 'Ibi sunt 5 liberi homines S. Benedicti
commendatione tantum... et ita est in monasterio quod nec vendere
ned forisfacere pot[uerunt] extra ecclesia set soca est in
hundredo.' -- Ibid. i. 137 b, Herts: 'duo teigni..... vendere non
potuerunt.' -- Ibid. i. 30 b, Hants: 'Duo liberi homines
tenuerunt de episcopo T. R. E. sed recedere cum terra non
potuerunt.'
115. Above,p. 135, note 1.
116. E.g. D. B. i. 129 b: 'In hac terra fuerunt 5 sochemanni de 6
hidis quas potuerunt dare vel vendere sine licentia dominorum
suorum.'
117. Above, p. 132, note 1.
118. E.g. D. B. ii, 358: '7 liberos homines... hi poterant dare
vel vendere terram set saca et soca et commendatio et servitium
remanebant Sancto [Edmundo].'
119. D. B. ii. 186: 'In Sterestuna tenuit unus liber homo S.
Aldredae T. R. E. et Stigandi erat soca et saco in Hersam.' --
Ibid. 139 b: 'habuit socam et sacam... de commendatis suis.'
120. D. B. i. 141.
121. Liebermann, Leges Edwardi, p. 72. The most important passage
is Leg. Edw. 12 sect. 4: 'Manbote in Danelaga de villano et de
socheman 12 oras [=20 sol.]: de liberis hominibus 3 marcas [=40
sol.].'
122. A study of the Hundred Rolls might prepare us for this
result. One jury will call servi those whom another jury would
have called villani. See e.g. R. H. ii. 688 ff.
123. D. B. ii. 189, b. 190.
124. D. B. ii. 318: 'In Suttona tenet idem W. [de Cadomo] de R.
Malet 2 liberos homines commendatos Edrico 61 acr[arum] et sub 1
ex ipsis 5 liberi [sic] homines.' -- Ibid. 321 b: 'In Caldecota 6
liberi homines commendati Leuuino de Bachetuna 74 acr. et 7
liberi homines sub eis commend[ati] de 6 acr. et dim.'
6. The Manor
This brings us face to face with a question that we have
hitherto evaded. What is a manor? The word manerium appears on
page after page of Domesday Book, but to define its meaning will
task our patience. Perhaps we may have to say that sometimes the
term is loosely used, that it has now a wider, now a narrower
compass, but we cannot say that it is not a technical term.
Indeed the one statement that we can safely make about it is
that, at all events in certain passages and certain contexts, it
is a technical term.
We may be led to this opinion by observing that in the
description of certain counties -- Middlesex, Buckingham,
Bedford, Cambridge, Huntingdon, Derby, Nottingham, Lincoln, York
-- the symbol M, which represents a manor, is often carried out
into the margin, and is sometimes constrasted with the S which
represents a soke and the B which represents a berewick. This no
doubt has been done -- though it may not have been very
consistently done -- for the purpose of guiding the eye of
officials who will turn over the pages in search of manors. But
much clearer evidence is forthcoming. Throughout the survey of
Essex it is common to find entries which take such a form as
this: 'Thurkil held it for two hides and for one manor'.
'Brithmaer held it for five hides and for one manor'; 'Two free
men who were brothers held it for two hides and for two manors';
'Three free men held it for three manors and for four hides and
twenty-seven acres;(1*) in Sussex again the statement 'X tenuit
pro uno manerio'(2*) frequently occurs. Such phrases as 'Four
brothers held it for two manors, Hugh received it for one
manor,(3*) -- 'These four manors are now for one manor'(4*) --
'Then there were two halls, now it is in one manor,'(5*) -- 'A
certain thegn held four hides and it was a manor,(6*) -- are by
no means unusual.(7*) A clerk writes 'Elmer tenuit' and then is
at pains to add by way of interlineation 'pro manerio.'(8*)
'Eight thegns held this manor, one of them, Alwin, held two hides
for a manor; another, Ulf, two hides for a manor; another, Algar,
one hide and a half for a manor; Elsi one hide, Turkill one hide,
Lodi one hide, Osulf one hide, Elric a half-hide'(9*) -- when we
read this we feel sure that the scribe is using his terms
carefully and that he is telling us that the holdings of the five
thegns last mentioned were not manors. And then Hugh de Port
holds Wallop in Hampshire 'for half a manor.'(10*) But let us say
at once that at least one rule of law, or of local custom,
demands a definition of a manerium. In the shires of Nottingham
and Derby a thegn who has more than six manors pays a relief of
£8 to the king, but if he has only six manors or less, then a
relief of 3 marks to the sheriff.(11*) It seems clear therefore
that not only did the Norman rulers treat the term manerium as an
accurate term charged with legal meaning, but they thought that
it, or rather some English equivalent for it, had been in the
Confessor's day an accurate term charged with legal meaning.
The term manerium seems to have come in with the
Conqueror,(12*) though other derivatives frow the Latin verb
manere, in particular mansa, mansio, mansiuncula had been freely
employed by the scribes of the land-books. But these had as a
rule been used as representatives of the English hide, and just
for this reason they were incapable of expressing the notion that
the Normans desired to express by the word manerium. In its
origin that word is but one more name for a house. Throughout the
Exeter Domesday the word mansio is used instead of the manerium
of the Exchequer record, and even in the Exchequer record we way
find these two terms used interchangeably: -- 'Three free men
belonged to this manerium; one of them had half a hide and could
withdraw himself without the licence of the lord of the
mansio.'(13*) If we look for the vernacular term that was
rendered by manerium, we are likely to find it in the English
heal. Though this is not connected with the Latin aula, still
these two words bearing a similar meaning meet and are fused in
the aula, haula, halla of Domesday Book.
Now this term stands in the first instance for a house and
can be exchanged with curia. You may say that there is meadow
enough for the horses of the curia,(14*) and that there are three
horses in the aula;(15*) you may speak indifferently of a mill
that serves the hall,(16*) or of the mill that grinds the corn of
the court.(17*) But further, you may say that in Stonham there
are 50 acres of the demesne land of the hall in Creeting, or that
in Thorney there are 24 acres which belong to the hall in
Stonham,(18*) or that Roger de Rames has lands which once were in
the hall of St Edmund,(19*) or that in the hall of Grantham there
are three carucates of land,(20*) or that Guthmund's sake and
soke extended only over the demesne of his hall.(21*) We feel
that to such phrases as these we should do no great violence were
we to substitute 'manor' for 'hall.' Other phrases serve to bring
these two words very closely together. One and the same page
tells us, first, that Hugh de Port holds as one manor what four
brothers held as two manors, and then, that on another estate
there is one hall though of old there were two halls:(22*) --
these two stories seem to have the same point. 'Four brothers
held this; there was only one hall there.'(23*) 'Two brothers
held it and each had his hall; now it is as one manor.'(24*) 'In
these two lands there is but one hall.'(25*) 'Then there were two
halls; now it is in one manor.'(26*) 'Ten manors; ten thegns,
each had his hall'(27*) 'Ingelric set these men to his hall...
Ingelric added these men to his manor.'(28*)
We do not contend that manerium and halla are precisely
equivalent. Now and again we shall be told of a manerium sine
halla(29*) as of some exceptional phenomenon. The term manerium
has contracted a shade of technical meaning; it refers, so we
think, to a system of taxation, and thus it is being
differentiated from the term hall. Suppose, for example, that a
hall or manor has meant a house from which taxes are collected,
and that some one removes that house, houses being very portable
things:(30*) 'by construction of law,' as we now say, there still
may be a hall or manor on the old site; or we may take advantage
of the new wealth of words and say that, though the hall has
gone, the manor remains: to do this is neater than to say that
there is a 'constructive' hall where no hall can be seen. Then
again, manerium is proving itself to be the more elastic of the
two terms. We may indeed speak of a considerable stretch of land
as belonging to or even as 'being in' a certain hall, and this
stretch may include not only land that the owner of the hall
occupies and cultivates by himself or his servants, but also land
and houses that are occupied by his villeins:(31*) still we could
hardly talk of the hall being a league long and a league wide or
containing a square league. Of manerium, however, we may use even
such phrases as those just mentioned.(32*) For all this, we can
think of no English word for which manerium can stand, save hall;
tún, it is clear enough, was translated by villa, not by
manerium.
If now we turn from words to look at the things which those
words signify, we shall soon be convinced that to describe a
typical manerium is an impossible feat, for on the one hand there
are enormous maneria and on the other hand there are many
holdings called maneria which are so small that we, with our
reminiscences of the law of later days, can hardly bring
ourselves to speak of them as manors. If we look in the world of
sense for the essence of the manerium we shall find nothing that
is common to all maneria save a piece of ground -- very large it
may be, or very small -- held (in some sense or another) by a
single person or by a group of co-tenants, for even upon a house
we shall not be able to insist very strictly. After weary
arithmetical labours we might indeed obtain an average manor; we
might come to the conclusion that the average manor contained so
many hides or acres, possibly that it included land occupied by
so many sokemen, villeins, bordiers, serfs; but an average is not
a type, and the uselessness of such calculations will soon become
apparent.
We may begin by looking at a somewhat large manor. Let it be
that of Staines in Middlesex, which is held by St Peter of
Westminster.(33*) It is rated at 19 hides but contains land for
24 plough-teams. To the demesne belong 11 hides and there are 13
teams there. The villeins have 11 teams. There are: --
3 villeins with a half-hide apiece.
4 villeins with a hide between them.
8 villeins with a half-virgate apiece.
36 bordiers with 3 hides between them.
1 villein with 1 virgate.
4 bordiers with 40 acres between them.
10 bordiers with 5 acres apiece.
5 cottiers with 4 acres.
8 bordiers with 1 virgate.
3 cottiers with 9 acres.
13 serfs.
46 burgesses paying 40 shillings a year.
There are 6 mills of 64 shillings and one fish-weir of 6s.
8d. and one weir which renders nothing. There is pasture
sufficient for the cattle of the vill. There is meadow for the 24
teams, and in addition to this there is meadow worth 20s a year.
There is wood for 30 pigs; there are 2 arpents of vine yard. To
this manor belong four berewicks. Altogether it is worth £35 and
formerly it was worth £40. -- This is a handsome manor. -- The
next manor that is mentioned would be a fairer specimen. It is
Sunbury held by St Peter of Westminster.(34*) It is rated at 7
hides and there is land for but 6 teams. To the demesne belong 4
hides and there is one team there. The villeins have 4 teams.
There are: --
A priest with a half-virgate.
8 villeins with a virgate apiece.
2 villeins with a virgate.
5 bordiers with a virgate.
5 cottiers.
1 serf.
There is meadow for 6 teams and pasture enough for the cattle
of the vill. Altogether it is worth £6 and has been worth £7.
Within this one county of Middlesex we can see wide variations.
There are manors which are worth £50 and there are manors which
are not worth as many shillings. The archbishop's grand manor at
Harrow has land for 70 teams;(35*) the Westminster manor of
Cowley has land for but one team and the only tenants upon it are
two villeins.(36*)
But far larger variations than these are to be found. Let us
look at a few gigantic manors. Leominster in Herefordshire had
been held by Queen Edith together with sixteen members.(37*) The
names of these members are given and we may find them scattered
about over a wide tract of Herefordshire. In this manor with its
members there were 80 hides. In the demesne there were 30 teams.
There were 8 reeves and 16 beadles and 8 radknights and 238
villeins, 75 bordiers and 82 male and female serfs. These in all
had 230 teams; so that with the demesne teams there were no less
than 260. Further there were Norman barons paying rents to this
manor. Ralph de Mortemer for example paid 15s and Hugh de Lacy
6s. 8d. It is let to farm at a rent of £60 and besides this has
to support a house of nuns; were it freed from this duty, it
might, so thinks the county, be let at a rent of £120. It is a
most interesting manor, for we see strong traces of a neat
symmetrical arrangement: -- witness the 16 members, 8 reeves, 8
radknights, 16 beadles; very probably it has a Welsh basis.(38*)
But we have in this place to note that it is called a manor, and
for certain purposes it is treated as a single whole. For what
purposes? Well, for one thing, it is let to farm as a single
whole. This, however, is of no very great importance, for
landlords and farmers may make what bargains they please. But
also it is taxed as a single whole. It is rated at the nice round
figures of 80 hides.
No less handsome and yet more valuable is Berkeley in
Gloucestershire.(39*) It brought in a rent of £170 of refined
money. It had eighteen members which were dispersed abroad over
so wide a field that a straight line of thirty miles would hardly
join their uttermost points.(40*) 'All the aforesaid members
belong to Berkeley.' There were 29 radknights, 162 villeins, 147
bordiers, 22 coliberts, 161 male and female serfs, besides some
unenumerated men of the radknights; on the demesne land were 54
1/2 teams; and the tenants had 192. Tewkesbury also is a splendid
manor. 'When it was all together in King Edward's time it was
worth £100,' though now but £50 at the most can be had from it
and in the turmoil of the Conquest its value fell to £12.(41*) It
was a scattered unit, but still it was a unit for fiscal
purposes. It was reckoned to contain 95 hides, but the 45 which
were in demesne were quit of geld, and matters had been so
arranged that all the geld on the remaining 50 hides had, as
between the lord and his various tenants, been Tewkesbury; the
members were dispersed abroad; but 'they gelded in
Tewkesbury.'(42*)
No list of great manors would be complete without a notice of
Taunton.(43*) 'The bishop of Winchester holds Tantone or has a
mansion called Tantone. Stigand held in in King Edward's day and
it gelded for 54 hides and 2 1/2 virgates. There is land for 100
teams, and besides this the bishop in his demesne has land for 20
teams which never gelded.' 'With all its appendages and customs
it is worth £154 12d.' 'Tantone' then is valued
as a whole and it has gelded as a whole. But 'Tantone' in this
sense covers far more than the borough which bears that name; it
covers many places which have names of their own and had names of
their own when the survey was made.(44*) We might speak of the
bishop of Exeter's manor of Crediton in Devon which is worth £75
and in which are 264 villeins and 73 bordiers,(45*) or of the
bishop of Winchester's manor of Chilcombe in Hampshire where
there are nine churches,(46*) but we turn to another part of
England.
If we wish to see a midland manor with many members we may
look at Rothley in Leicestershire.(47*) The vill at Rothley
itself is not very large and it is separately valued at but 62s.
But 'to this manor belong the following members,' and then we
read of no less than twenty-one members scattered over a large
area and containing 204 sokemen who with 157 villeins and 94
bordiers have 82 teams and who pay in all £31 8s. 1d. Their rents
are thus reckoned as forming a single whole. In Lincolnshire Earl
Edwin's manor of Kirton had 25 satellites, Earl Morcar's manor of
Caistor 16, the Queen's manor of Horncastle 15.(48*) A
Northamptonshire manor of 27 hides lay scattered about in six
hundreds.(49*)
It is common enough to see a town-house annexed to a rural
manor. Sometimes a considerable group of houses or 'haws' in the
borough is deemed to 'lie in' or form part of a manor remote from
its walls. Thus, to give but two examples, twelve houses in
London belong to the Bishop of Durham's manor of Waltham in
Essex; twenty-eight houses in London to the manor of
Barking.(50*) Not only these houses but their occupants are
deemed to belong to the manor; thus 80 burgesses in Dunwich
pertain to one of the Ely manors.(51*) The berewick
(bereuita)(52*) also frequently meets our eye. Its name seems to
signify primarily a wick, or village, in which barley is grown;
but, like the barton (bertona) and the grange (grangia) of later
days, it seems often to be a detached portion of a manor which is
in part dependent on, and yet in part independent of, the main
body. Probably at the berewick the lord has some demesne land and
some farm buildings, a barn or the like, and the villeins of the
berewick are but seldom called upon to leave its limits; but the
lord has no hall there, he does not consume its produce upon the
spot, and yet for some important purposes the berewick is a part
of the manor. The berewick might well be some way off from the
hall; a manor in Hampshire had three berewicks on the mainland
and two in the Isle of Wight.(53*)
Then again in the north and east the manor is often the
centre of an extensive but very discrete territory known as its
soke. One says that certain lands are 'soke' or are 'the soke,'
or are 'in the soke' of such a manor, or that 'their soke
belongs' to such a manor. One contrasts the soke of the manor
with the 'inland' and with the berewicks.(54*) The soke in this
contest seems to be the territory in which the lord's rights are,
or have been, of a justiciary rather than of a proprietary
kind.(55*) The manor of the eastern counties is a discrete, a
dissipated thing. Far from lying within a ring fence, it often
consists of a small nucleus of demesne land and villein tenements
in one village, together with many detached parcels in many other
villages, which are held by 'free men' and sokemen. In such a
case we may use the term manerium now in a wider, now in a
narrower sense. In valuing the manor, we hardly know whether to
include or exclude these free men. We say that the manor 'with
the free men' is worth so much,(56*) or that the manor 'without
the free men' is worth so much,(57*) that the manor is worth £10
and that the free men pay 40 shillings,(58*) that Thurmot had
soke over the manor and over three of the free men while the
Abbot of Ely had soke over the other three.(59*)
From one extreme we may pass to the other extreme. If here
were huge manors, there were also tiny manors. Let us begin in
the south-west of England. Quite common is the manor which is
said to have land for but one team; common also is the manor
which is said to have land for but half a team. This means, as we
believe, that the first of these manors has but some 120 acres of
arable, while the second has but 60 acres or thereabouts.
'Domesday measures' are, it is well known, the matter of many
disputes; therefore we will not wholly rely upon them, but will
look at some of these 'half-team' manors and observe how much
they are worth, how many tenants and how much stock they have
upon them.
(i) A Somersetshire manor.(60*) Half the land is in demesne;
half is held by 7 bordiers. The only plough beasts are 4 oxen on
the demesne; there are 3 beasts that do not plough, 20 sheep, 7
acres of underwood, 20 acres of pasture. It is worth 12s,
formerly it was worth 10s.
(ii) A Somersetshire manor.(61*) A quarter of the land is in
demesne; the rest is held by 2 villeins and 3 bordiers. The men
have one team; apparently the demesne has no plough-oxen. No
other animals are mentioned. There are 140 acres of wood, 41
acres of moor, 40 acres of pasture. It is worth 12s. 6d. and has
been worth 20s.
(iii) A Somersetshire manor.(62*) All the land, save 10
acres, is in demesne; 2 bordiers hold the 10 acres. There is a
team on the demesne; there are 2 beasts that do not plough, 7
pigs, 16 sheep, 4 acres of meadow, 7 of pasture. Value, 6s.
(iv) A Somersetshire manor.(63*) The whole of the arable is
in demesne; the only tenant is a bordier. There are 4 plough-oxen
and 11 goats and 7 acres of underwood. Value, 6s.
(v) A Devonshire manor.(64*) To all seeming all is in demesne
and there are no tenants. There are 4 plough-beasts, 15 sheep, 5
goats, 4 acres of meadow. Value, 3s.
We have been at no great pains to select examples, and yet
smaller manors may be found, manors which provide arable land for
but two oxen. Thus.
(vi) A Devonshire manor.(65*) Value, 3s. All seems to be in
demesne; we see no tenants and no stock.
(vii) A Somersetshire manor(66*) occupied by one villein. We
read nothing of any stock. Value, 15d.
(viii) A Somersetshire manor(67*) with 3 bordiers on it.
Value, 4s.
(ix) A Somersetshire manor(68*) with one bordier on it.
Value, 30d.
The lowest value of a manor in this part of the world is, so
far as we have observed, one shilling; that manor to all
appearance was nothing but a piece of pasture land.(69*) Yet each
of those holdings is a mansio, and the Bishop of Winchester's
holding at Taunton is a mansio.
From one side of England we will journey to the other side;
from Devon and Somerset to Essex and Suffolk. We soon observe
that in describing the holdings of the 'free men' and sokemen of
this eastern district as they were in King Edward's day, our
record constantly introduces the term manerium. A series of
entries telling us how 'a free man held x hides or carucates or
acres' will ever and anon be broken by an entry that tells us how
'a free man held x hides or carucates or acres for a manor'.(70*)
We soon give up counting the cases in which the manor is rated at
60 acres. We begin counting the cases in which it is rated at 30
acres and find them numerous; we see manors rated at 24 acres, at
20, at 15, at 12 acres. But this, it may be said, tells us
little, for these manors may be extravagantly underrated.(71*)
Let us then look at a few of them.
(i) In Espalle Siric held 30 acres for a manor; there were
always 3 bordiers and one team and 4 acres of meadow; wood for 60
pigs and 13 beasts. It was then worth 10s.(72*)
(ii) In Torentuna Turchetel a free man held 30 acres for a
manor; there were always 2 bordiers and one team and a half. It
is worth 10s.(73*)
(iii) In Bonghea Godric a free man held 30 acres for a manor;
there were 1 bordier and 1 team and 2 acres of meadow. It was
then worth 8s.(74*)
(iv) Three free men and their mother held 30 acres for a
manor. There was half a team. Value, 5s.(75*)
(v) In Rincham a free man held 30 acres for a manor. There
were half a team and one acre of meadow. Value, 5s.(76*)
(vi) In Wenham AElfgar a free man held 24 acres for a manor.
Value, 4s.(77*)
(vii) In Torp a free man held 20 acres for a manor. One team;
wood for 5 pigs. Value, 40d.(78*)
(viii) In Tudenham AElfric the deacon, a free man, held 12
acres for a manor. One team, 3 bordiers, 2 acres of meadow, 1
rouncey, 2 beasts that do not plough, 11 pigs, 40 sheep. Value,
3s.(79*)
We are not speaking of curiosities; the sixty-acre manor was
very common in Essex, the thirty-acre manor was no rarity in
Suffolk.
Now it is plain enough that the 'lord' of such a manor -- or
rather the holder of such a manor, for there was little lordship
in the case -- was often enough a peasant, a tiller of the soil.
He was under soke and under commendation; commended it may be to
one lord rendering soke to another. Sometimes he is called a
sokeman.(80*) But he has a manor. Sometimes he has a full team,
sometimes but half a team. Sometimes he has a couple of bordiers
seated on his land, who help him in his husbandry. Sometimes
there is no trace of tenants, and his holding is by no means too
large to permit of his cultivating it by his own labour and that
of his sons. No doubt in the west country even before the
Conquest these petty mansiones or maneria were being accumulated
in the hands of the wealthy. The thegn who was the antecessor of
the Norman baron sometimes held a group, a geographically
discontinuous group, or petty manors as well as some more
substantial and better consolidated estates. But still each
little holding is reckoned a manor, while in the east of England
there is nothing to show that the nameless free men who held the
manors which are said to consist of 60, 40, 30 acres had usually
more than one manor apiece. When therefore we are told that
already before the Conquest England was full of manors, we must
reply: Yes, but of what manors?(81*)
Now were the differences between various manors a mere
difference in size and in value, a student of law might pass them
by. Our notion of ownership is the same whether it be applied to
the largest and most precious, or to the smallest and most
worthless of things. But in this case we have not to deal with
mere differences in size or value. The examples that we have
given will have proved that few, if any, propositions of legal
import will hold good of all maneria. We must expressly reject
some suggestions that the later history of our law may make to
us. 'A manor has a court of its own': -- this is plainly untrue.
To say nothing of extreme cases, of the smallest of the manors
that we have noticed, we cannot easily believe that a manor with
less than ten tenants has a court of its own, yet the number of
such manors is exceedingly large. 'A manor has freehold tenants':
-- this of course we must deny, unless we hold that the villani
are freeholders. 'A manor has villein or customary tenants': --
even this proposition, though true of many cases, we cannot
accept. Not only may we find a manor the only tenants upon which
are liberi homines,(82*) but we are compelled to protest that a
manor need not have any tenants at all. 'A manor must contain
demesne land': -- this again we cannot believe. In one case we
read that the whole manor is being farmed by the villeins so that
there is nothing in demesne,(83*) while in other cases we are
told that there is nothing in demesne and see no trace of any
recent change.(84*) Thus, one after another, all the familiar
propositions seem to fail us, and yet we have seen good reason to
believe that manerium has some exact meaning. It remains that we
should hazard an explanation.
A manor is a house against which geld is charged. To the
opinion that in some way or another the definition of a manor is
intimately connected with the great tax we shall be brought by
phrases such as the following: 'Richard holds Fivehide of the
Earl which Brihtmaer held in King Edward's time for forty acres
and for a manor.'(85*) -- 'Two free men who were brothers, Bondi
and AElfric, held it for two hides and for two manors.'(86*) When
we say that a man holds land 'as' or 'for' (pro) forty acres, we
mean that his holding, be its real size what it may, is rated to
the geld at forty acres. If we add the words 'and as (or for) one
manor,' surely we are still speaking of the geld. For one moment
the thought may cross our minds that, besides a tax on land,
there has been an additional tax on 'halls,' on houses of a
certain size or value; but this we soon dismiss as most unlikely.
To raise but one out of many objections: had there been such a
house-tax, it would have left plain traces of itself in those
'Geld inquests' of the southwestern counties that have come down
to us. Rather we regard the matter thus: -- The geld is a
land-tax, a tax of so much per hide or carucate. In all
likelihood it has been assessed according to a method which we
might call the method of subpartitioned provincial quotas. The
assumption has been made that a shire or other large district
contains a certain number of hides; this number has then been
apportioned among the hundreds of that shire, and the number
allotted to each hundred has been. apportioned among the vills of
that hundred. The common result is that some neat number of
hides, five, ten or the like is attributed to the vill.(87*) This
again has been divided between the holdings in that vill.
Ultimately it is settled that for fiscal purposes a given holding
contains, or must be deemed to contain, this or that number of
hides, virgates, or acres. Thus far the system makes no use of
the manerium. But it now has to discover some house against which
a demand may be made for every particular penny of geld. Despite
the 'realism' of the system, it has to face the fact that, after
all, taxes must be paid by men and not by land. Men live in
houses. It seeks the tax-payer in his house. Now, were all the
occupiers of land absolute owners of the land that they occupied,
even were it true that every acre had some one person as its
absolute owner, the task would be simple. A schedule of five
columns, such we are familiar with, would set forth 'Owner's
Name,' 'Place of Residence,' 'Description of Geldable Property,'
'Hidage,' 'Amount due.' But the occupier is not always the owner;
what is more, there is no absolute ownership. Two, three, four
persons will be interested in the land; the occupier will have a
lord and that lord a lord; the occupier may be a serf, a villein,
a sokeman; there is commendation to be considered and soke and
all the infinite varieties of the power to 'withdraw' the land
from the lord. Rude and hard and arbitrary lines must be drawn.
Of course the state will endeavour to collect the geld in big
sums. It will endeavour to make the great folk answer for the
geld which lies on any land that is in any way subject to their
power; thus the cost of collecting petty sums will be saved and
the tax will be charged on men who are solvent. The central power
may even hold out certain advantages to the lord who will become
responsible for the geld of his tenants or justiciables or
commended men. The hints that we get in divers counties that the
lord's 'inland' has borne no geld seem to point in this
direction, though the arrangements about this matter seem to have
varied from shire to shire.(88*) On the pipe rolls of a later day
we see that the geld charged against the magnates is often
'pardoned.' For one reason the king cannot easily tax the rich;
for another he cannot easily tax the poor; so he gets at the poor
through the rich. The small folk will gladly accept any scheme
that will keep the tax-collector from their doors, even though
they purchase their relief by onerous promises of rents and
services. The great men, again, may find advantage in such
bargains; they want periodical rents and services, and in order
to obtain them will accept a certain responsibility for
occasional taxes. This process had gone very far on the eve of
the Conquest. Moreover the great men had enjoyed a large liberty
of paying their geld where they pleased, of making special
compositions with the king, of turning some wide and discrete
territory into a single geld-paying unit, of forming such
'manors' as Taunton or Berkeley or Leominster.
In King Edward's day the occupiers of the soil might, so it
seems to us, be divided by the financier into three main classes.
In the first class we place the man who has a manor. He has, that
is, a house at which he is charged with geld. He may be a great
man or a small, an earl or a peasant; he may be charged at that
house with the geld of a hundred hides or with the geld of
fifteen acres. In the second class we place the villeins,
bordiers, cottiers. The geld apportioned to the land that they
occupy is demanded from their lord at his manor, or one of his
manors. How he recoups himself for having to make this payment,
that is his concern; but he is responsible for it to the king,
not as guarantor, but as principal debtor. But then, at least in
the east and north, there are many men who fall into neither of
these classes. They are not villeins, they are sokemen or 'free
men'; but their own tenements are not manors; they belong to or
'lie in' some manor of their lord. These men, we think, can be
personally charged with the geld; but they pay their geld at
their lord's hall and he is in some measure bound to exact the
payment.
Anything that could be called a strict proof of this theory
we cannot offer; but it has been suggested by many facts and
phrases which we cannot otherwise explain. In the first place,
our record seems to assume that every holding either is a manor
or forms part of a manor.(89*) Then we are told how lands 'geld'
at or in some manor or at the caput manerii. Thus lands which lie
many miles away from Tewkesbury, but which belong to the manor of
Tewkesbury, 'geld in Tewkesbury.'(90*) Sometimes the same
information is conveyed to us by a phrase that deserves notice. A
piece of land is said to 'defend itself' in or at some manor, or,
which is the same thing, to have its wara or render its wara,
that is to say, its defence, its answer to the demand for geld,
there.(91*) 'In Middleton two sokemen had 16 acres of land and
they rendered their wara in the said Middleton, but they could
give and sell their land to whom they pleased.'(92*) When we are
told that certain lands are in warnode Drogonis or in warnode
Archiepiscopi, it is meant that the lands belong to Drogo or the
Archbishop for the purpose of 'defence' against the geld.(93*) It
is not sufficient that land should be taxed, it must be taxed
'in' some place, which may be remote from that in which, as a
matter of physical fact, it lies.(94*) One clear case of a free
tenant paying his geld to his lord is put before us: -- 'Leofwin
had half a hide and could withdraw with his land and he paid geld
to his lord and his lord paid nothing.'(95*) Besides this we have
cases in which the lord enjoys the special privilege of
collecting the geld from his tenants and keeping it for his own
use.(96*) A remarkable Kentish entry tells us that at Peckham the
archbishop had an estate which had been rated at six sullungs,
and then that 'of the land of this manor a certain man of the
archbishop held a half-sullung which in King Edward's day gelded
with these six sullungs, although being free land it did not
belong to the manor save for the purpose of the scot.'(97*) Here
we have land so free that the one connexion between it and the
manor to which it is attributed consists in the payment of geld
-- it gelds along with the other lands of the manor. In the great
lawsuit between the churches of Worcester and Evesham about the
lands at Hamton, the former contended that these lands should pay
their geld along with the other estates of the bishop.(98*)
Let us observe the first question that the commissioners are
to ask of the jurors. What is the name of the mansio? Every piece
of geldable land is connected with some mansio, at which it
gelds. Let us observe how the commissioners and the jurors
proceed in a district where the villae and the mansiones or
maneria are but rarely coincident. The jurors of the Armingford
hundred of Cambridgeshire are speaking of their country vill by
vill. They come to the vill of Abington.(99*) Abington, they say,
was rated at five hides. Of these five hides the king has a
half-hide; this lies in Litlington. Earl Roger has one virgate;
this lies in his manor of Shingay. Picot the sheriff has a
half-virgate; this lies and has always lain in Morden. In what
sense important to the commissioners or their master can a bundle
of strips scattered about in the fields of Abington be said to
lie in Litlington, in Shingay, or in Morden? We answer that it
gelds there.
Hence the importance of the hall. It is the place where geld
is demanded and paid. A manor without a hall is a thing to be
carefully noted, otherwise some geld may be lost.(100*) A man's
land has descended to his three sons: if 'there is only one
hall,' but one demand for geld need be made; if 'each has his
hall,' there must be three separate demands. When we are told
that two brothers held land and that each had his house (domus)
though they dwelt in one court (curia), a nice problem is being
put before us: -- Two halls, or one hall -- Two manors or one
manor?(101*)
The petty maneria of Suffolk, what can they be but holdings
which geld by themselves? The holders of them are not great men,
they have no tenants or just two or three bordiers; sometimes
they can not 'withdraw' their lands from their lords. But still
they pay their own taxes at their own houses.
In supposing that forces have been at work which tend to make
the lord responsible for the taxes of his men, we are not without
a warrant in the ancient dooms. 'If a king's thegn or a lord of
land (landrica) neglects to pay the Rome penny, let him forfeit
ten half-marks, half to Christ, half to the king. If a "townsman"
withholds the penny, let the lord of the land pay the penny and
take an ox from the man, and if the lord neglects to do this,
then let Christ and the king receive the full bót of 12
ores.'(102*) The right of doing justice is also the duty of doing
justice. It is natural that the lord with soke should become a
tax-gatherer, and he will gladly guarantee the taxes if thereby
he can prevent the king's officers from entering his precinct and
meddling with his justiciables. At no time has the state found it
easy to collect taxes from the poor; over and over again it has
been glad to avail itself of the landlord's intermediation.(103*)
Our theory that while the lord is directly and primarily
responsible for the geld of his villeins, he is but subsidiarily
responsible for the geld of those of his sokemen or 'free men'
who are deemed to belong to his manor, is founded in part on what
we take to have been the wording of King William's writ,(104*) in
part on the form taken by the returns made thereto. The writ
draws a marked line between the villein and the sokeman. The king
wishes to know how much land each sokeman, each liber homo,
holds; he does not care that any distinction should be drawn
between the lord's demesne lands and the lands of the villeins.
And, on the whole, his commands are obeyed. A typical entry in
the survey of East Anglia will first describe in one mass the
land held by the lord and his villeins, will tell us how many
carucates this land is rated at, how many teams there are on the
demesne, and how many the men have, then it will enumerate sheep
and pigs and goats, and then, as it were in an appendix, it will
add that so many sokemen belong to this manor and that between
them they hold so many carucates or acres.(105*) In Suffolk even
the names of these humble tenants are sometimes recorded.(106*)
And then, we have seen(107*) that there is some doubt as to
whether or no these men are or are not to be reckoned as part of
the manor for all purposes. We have to say that the manor 'with
the free men,' or 'without the free men', is worth so much.
After all, we are only supposing that the fashion in which
the danegeld was put in charge resembled in some of its main
outlines the fashion in which a very similar tax was put in
charge under Richard I. In 1194, the land-tax that was levied for
the payment of the king's ransom seems to have been assessed
according to the hidage stated in Domesday Book.(108*) Then in
1198 a new assessment was made. We are told that the king
ordained that every baron should with the sheriff's aid distrain
his men to pay the tax cast upon them, and that if, owing to the
baron's default, distresses were not made, then the amount due
from the baron's men should be seized from the baron's own
demesne and he should be left to recoup himself as best he
could.(109*) Now it is a liability of this sort that we are
venturing to carry back into the Confessor's day. The lord is
responsible to the state as principal, and indeed as sole, debtor
for so much of the geld as is due from his demesne land and from
the land of his villani, while as regards any lands of 'free men'
or sokemen which are attached to his manor, his liability is not
primary nor absolute; he is bound to take measures to make these
men pay their taxes; if he fails in this duty, then their taxes
will become due from his demesne.(110*)
When we read that in Nottinghamshire the relief of the thegn
who had six manors or less was three marks, while his who had
more than six manors was eight pounds,(111*) this may seem to
hint that some inferior limit was set to the size of the manor.
If so, it was drawn at a very low point in the scale of
tenements. Possibly some general rule had compelled all men who
held less than a bovate or half-virgate to 'add' themselves to
the manor of some lord. But the Nottinghamshire rule is rude and
arbitrary. He who has seven houses against which geld is charged
is a big man. On the other hand, it is probable that the Norman
lords brought with them some notion, and not a very modest
notion, of what a reasonably sufficient manerium should be. The
king has in some cases rewarded them by a promise of ten or
twenty manors without specifying very carefully what those manors
are to be like. He has promised Count Eustace a hundred
manors.(112*) Thus we would explain a not uncommon class of
entries: -- 'fourteen free men commended to Wulfsige were
delivered to Rainald to make up (ad perficiendum) this manor of
Carlington.'(113*) -- in Berningham a free man held 20 acres of
land and this was delivered to Walter Giffard to make up
Letheringsett.'(114*) -- 'Peter claims the land which belonged to
seventeen free men as having been delivered to him to make up
this manor.'(115*) -- 'This land was delivered to Peter to make
up some, but his men do not know what, manor.'(116*) The small
'free men' of the east have been 'added to' manors to which they
did not belong in King Edward's day. A few of the free men of
Suffolk still 'remain in the king's hand' ready to be delivered
out to complete the manors of their conquerors.(117*) Here too we
may perhaps find the explanation of the entry which says that
Hugh de Port held Wallop 'for half a manor.'(118*) The king has
promised him a dozen or score of manors; and this estate at
Wallop worth but fifteen shillings a year, really no gentleman
would take it for a manor.
Such then is the best explanation that we can offer of the
manerium of Domesday Book. About details we may be wrong, but
that this term has a technical meaning which is connected with
the levy of the danegeld we can not doubt. It loses that meaning
in course of time because the danegeld gives way before newer
forms of taxation. It never again acquires a technical meaning
until the late days when retrospective lawyers find the essence
of a manor in its court.(119*)
NOTES:
1. D. B. ii, 21, 26, 37 b, 59 b.
2. D. B. i. 21.
3. D. B. i. 45.
4. D. B. i. 6 b.
5. D. B. i. 27.
6. D. B. i, 163.
7. So in the Exeter record D. B. iv. 390: 'Tenuerunt 3 tegni pro
4 mansionibus, et Robertus habet illas pro 1 mansione.'
8. D. B. i. 169 b. Similar interlineations in i. 98.
9. D. B. i. 148; on f. 149 is a similar case.
10. D. B. i. 45 b.
11. D. B. i. 280 b.
12. In several passages in D. B. the word seems to be manerius.
13. D. B. ii. 96 b: 'Huic manerio iacebant 3 liberi homines, unus
tenuit dim, hidam et potuit abire sine licentia domini ipsius
mansions.'
14. D. B. i. 149, Wicombe.
15. D. B. ii. 38 b, Hersam.
16. D. B. i. 174, b. Poiwic.
17. D. B. i. 268, Gretford.
18. D. B. ii. 350 b.
19. D. B. ii. 263: 'sed fuerunt in aula S. Edmundi.'
20. D. B. i. 337 b.
21. D. B. ii. 408 b: 'cum soca et saca super dominium hallae
tantum.'
22. D. B. i. 45, Wicheham, Werste.
23. D. B. i. 20, Waliland.
24. D. B. i. 11 b, Acres.
25. D. B. i. 26 b, Eldretune.
26. D. B. i. 27, Percinges.
27. D. B. i. 284 b, AEttune.
28. D. B. ii. 29 b, 30 b.
29. D. B. i. 307 b, Burghedurum; 308, Ternusc.
30. D. B. i. 63: 'Ipse quoque transportavit hallam et alias domos
et pecuniam in alio manerio.'
31. D. B. i. 338 b: 'Ad huius manerii aulam pertinent Catenai et
Usun 4 car. terrae ad geldum. Terra ad 8 carucas. Ibi in dominio
2 carucae et 20 villani et 15 sochemanni et 10 bordarii habentes
9 carucas. Ibi 360 acre prati. Ad eundem manerium iacet hec soca:
-- In Linberge 4 car. terrae etc.'
32. Throughout Yorkshire the phrase is common, 'Totum manerium x.
leu. long. et y. leu. lat.'
33. D. B. i. 128.
34. D. B. i. 128 b.
35. D. B. i. 127.
36. D. B. i. 128 b.
37. D. B. i. 180.
38. Compare the cases in Seebohm, Village Community, 267.
39. D. B. i. 163.
40. If we mistake not, the Osleuuorde of the record is
Ashleworth, which, though some miles to the north of Gloucester,
either still is, or but lately was, a detached piece of the
Berkeley hundred.
41. D. B. i. 163.
42. D. B. i. 163 b: 'Hanc terram dedit regina Rogerio de Buslei
et geldabat pro 4 hidis in Tedechesberie.'
43. D. B. i. 87 b; iv. 161.
44. Eyton, Somerset, ii. 34.
45. D. B. i. 101 b; iv. 107.
46. D. B. i. 41.
47. D. B. i. 230.
48. D. B. i. 338-9.
49. D. B. i. 220, Tingdene.
50. D. B. ii. 15 b, 17 b.
51. D. B. ii. 385 b.
52. The form bereuita is exceedingly common, but must, we think,
be due to a mistake; c has been read as t.
53. D. B. i. 38 b, Edlinges. Some of the 'wicks' seem to have
been dairy farms. D. B. i. 58 b: 'et wika de 10 pensis caseorum.'
On the Glastonbury estates we find persons called wikarii, each
of whom has a wika. Glastonbury Rentalia, 39: 'Thomas de Wika
tenet 5 acras et 50 oves matrices et 12 vaccas... Philippus de
Wika tenet unum ferlingum et 50 oves matrices et 12 vaccas.'
Ibid. 44: 'A. B. tenet unum ferlingum et 50 oves matrices et 12
vaccas pro 1 sol. pro wika.' Ibid. 48: 'Ricardus de Wika tenet 5
acras et 50 oves matrices et 12 vaccas. Alanus de Wika eodem
modo.' Ibid. p. 51.
54. D. B. i. 350: 'In Osgotebi et Tauelebi 2 bo[vatae] inland et
1 bo[vata] soca huius manerii.' D. B. i. 338 b: 'Hiboldeston est
bereuuita non soca et in Grangeham sunt 2 car[ucatae] inland et
in Springetorp dim. car[ucata] est inland. Reliqua omnis est
soca.'
55. When therefore, as is often the case, we find that the
occupants of 'the soke are not sokemen but villeins, this seems
to point to a recent depression of the peasantry.
56. D. B. ii. 330 b: 'In illo manerio... sunt 35 liberi
homines.... Tunc valuerunt liberi homines 4 libras. Manerium cum
liberis hominibus valet modo 24 libras.'
57. D. B. ii. 358 b: 'Hoc manerium exceptis liberis tunc valuit
30 solidos.'
58. D. B. ii. 289 b.
59. D. B. ii. 285 b.
60. D. B. iv. 397; i. 93 b, Ichetoca.
61. D. B. iv. 411; 94 b, Tocheswilla.
62. D. B. iv. 398; i. 93 b, Pilloc.
63. D. B. iv. 341; i. 96, Sordemanneford.
64. D. B. iv. 355; i. 116 b, Labera.
65. D. B. iv. 367; i. 112 b. Oplomia.
66. D. B. iv. 338; i. 95 b, Aisseforda.
67. D. B. iv. 395; i. 93. Terra Colgrini.
68. D. B. iv. 394; i. 93, Rima.
69. D. B. iv. 338; i. 95 b, Aisseforda.
70. As the term manerium is often represented by the mere letter
M or m. we will refer to some cases in which it is written in
full. D. B. ii. 295 b: '40 acras pro uno manerio'; Ibid. 311 b:
'In eadem villa est 1 liber homo de 40 acris et tenet pro
manerio.'
71. The question whether the acreage stated in the Suffolk survey
is real or rateable cannot be briefly debated. We hope to return
to it.
72. D. B. ii. 322 b, 323.
73. D. B. ii. 323.
74. D. B. ii. 288.
75. D. B. ii. 309.
76. D. B. ii. 297 b.
77. D. B. ii. 377.
78. D. B. ii. 333.
79. D. B. ii. 423.
80. D. B. ii. 316: 'In Aldeburc tenuit Uluricus sochemannus
Edrici T. R. E. 80 acras pro manerio.' Ibid. 353: 'Nordberiam
tenuit Eduinus presbyter sochemannus Abbatis 30 acras pro
manerio.'
81. We have taken our examples of small manors from the east and
the south-west because Little Domesday and the Exeter Domesday
give details which are not to be had elsewhere. But instances may
be found in many other parts of England. Thus in Sussex, i. 24,
two free men held as two manors land rated at a hide and
sufficient for one team; it is now tilled by four villeins. In
the Isle of Wight, D. B. i. 39 b, five free men held as five
manors land sufficient for two teams; it is now tilled by four
villeins. In Gloucestershire, D. B. i. 170, is a manor worth ten
shillings with two serfs upon it; also a manor rated at one
virgate. In Derbyshire, i. 274 b, land sufficient for four teams
and rated as four carucate had formed eight manors. In
Nottinghamshire, D. B. i. 285 b, land sufficient for a team and a
half and valued at ten shillings had formed five manors for five
thegns, each of whom had his hall.
82. D. B. ii. 380: 'In Thistledona tenet 1 liber homo Ulmarus
commendatus S. Eldrede 60 acras pro manerio et 5 liberi homines
sub se.'
83. D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli... Hoc
manerium tenant villani ad firmam canonicorum. In dominio nil
habetur.'
84. D.B. 235 b: Billesdone, 'In dominio nil fuit nec est.' Ibid.
166 b, Glouc.: 'Isdem Willelmus [de Ow] tenet Alvredestone. Bondi
tenuit T. R. E. Ibi 3 hidae geldantes. Nil ibi est in dominio,
sed 5 villani et 3 bordarii habent 3 carucas.' 'Isdem Willelmus
tenet Odelavestone. Brictri filius Algari tenuit. Ibinil in
dominio nisi 5 villani cum 5 carucis.' D. B. iv 396: 'Rogerius
habet 1 mansionem quae vocatur P.... et reddit gildum pro dimidia
virgata; hanc potest arare 1 carruca. Hanc tenet Anschetillus de
Rogerio. Ibi habet Anschetillus 4 bordarios qui tenent totam
illam terram et habent ibi 1 carrucam et 1 agrum prati, et reddit
10 solidos.'
85. D. B. ii. 31.
86. D. B. ii. 59 b.
87. I leave this sentence as it stood before Mr Round had
published in his Feudal England the results of his brilliant
researches. Of the 'five-hide unit' I already knew a good deal;
of the 'six-carucate unit' I knew nothing.
88. Round, Domesday Studies, i. 109.
89. D. B. i. 35: 'In Driteham tenet Ricardus filius Gisleberti] 1
hidam et dimidiam. AElmar tenuit de Rege E. pro uno manerio... In
eadeum Dritehanm est 1 hida et dimidia quam tenuit Aluric de Rege
E. pro uno manerio, et postea dedit illam terram uxori suae et
filiae ed aecclesiam de Certesy, sicuti homines de hundredo
testantur. Ricardus [filius calumniatur. Non iacet ulli manerio,
nec pro manerio tenet, set Gisleberti] liberata fuit ei et modo 3
hidae geldant pro una hida et dimidia.' To say of the second of
these two plots that it neither is a manor not yet belongs to a
manor, is to say that it is shirking the geld. D. B. i. 48:
'Walerannus tenet Dene.... Ista tera non adiacet ulli suo
manerio.' Here suo = Waleranni. Waleran seems to be holding land
without good title.
90. D. B. i. 163 b, Clifort. D. B. i. 58 b: 'In Winteham tenet
Hubertus de Abbate 5 hidas, de terra villanorum fuerunt 4, et
geldaverunt cum hidis manerii.'
91. The word wara means defence; it comes from a root which has
given us, wary, warrant, warn, guarantee, weir, etc. See
Vinogradoff, Villainage, 243.
92. D. B. i. 212.
93. D. B. i. 340, 366, 368. Is not the last part of the word
A.-S. notu, (business, office)?
94. D. B. i. 132 b: 'Hoc manerium tenuit Heraldus Comes et iacuit
et iacet in Hiz [Hitchin, Herts] sed wara hujus manerii iacuit in
Bedefordscire T. R. E. in hundredo de Maneheue., D. B. i. 190,
'Haec terra est bereuuicha in Neuport [Essex] set wara ejus iacet
in Grantebrige.' When in the survey of Oxfordshire, i. 160, it is
said, 'Ibi 1 hida de warland in dominio,' the taxed land is
contrasted with the inland, which in this county has gone
untaxed.
95. D. B. i. 28.
96. See the cases of the monks of Bury and the canons of S.
Petroc, above, p. 82.
97. D. B. i. 4 b: 'De terra huius manerii ten[uit] unus homo
archiepiscopi dimid. solin et cum his 6 solins geldabat T. R. E.
quamvis non pertineret manerio nisi de scoto quia libera terra
erat.' The scotum in this context seems to be or to include the
geld. Compare D. B. i. 61 b: 'Haec terra iacet et appreciata est
in Gratentun quod est in Oxenfordscire et tamen dat scotum in
Berchescire.' D. B. ii. 11: 'In Colecestra habet episcopus 14
domos et 4 acras non reddentes consuetudinem praeter scotum nisi
episcopo.'
98. See above, p. 115.
99. Hamilton, Inquisitio, 60.
100. Above, p. 142.
101. D. B. i. 35 b.
102. Northumbrian Priests' Law, 58, 59 (Schmid, p. 369).
103. An Act of 1869 (32-3 Vic. c. 41) allowed the owners of
certain small houses to agree to pay the rates which under the
ordinary law would become due from the occupiers, and authorized
the vestries to allow such owners a commission of 25 per cent.
See also the instructive recital in 59 Geo. III. c. 12, sec. 19:
-- The small occupiers are evading the poors' rate, and the
owners exact higher rents than they would otherwise get, on the
ground that the occupiers cannot be effectually assessed.
104. See above, p. 47.
105. E.g. D. B. ii. 389 b, 'Clarum tenuit Aluricus pro manerio 24
car. terrae T. R. E. Tunc 40 villani.... Tunc 12 carucae in
dominio. Tunc 36 carucae hominum.... Huic manerio semper adiacent
5 sochemani cum omni consuetudine 1 car. terrae et dim. Semper 1
caruca et dimidia.'
106. E.g. D. B. ii. 339: 'In eadem villa 14 Liberi homines
commendati, Godricus faber et Edricus et Ulnotus et Osulfus et
Uluricus et Stanmarus et Leuietus et Wihtricus et Blachemanus et
Mansuna et Leuinus et Ulmarus et Ulfah et aLter Ulfah et
Leofstanus de 40 acris et habent 2 carucas et valent 10 solidos.'
107. Above, p. 148.
108. Rolls of the King's Court, Ric. I (Pipe Roll. Soc.), p.
xxiv. But apparently there had been considerable rearrangements
in some of the counties.
109. Hoveden, iv. 46. The important words are these: 'Statutum
etiam fuit quod quilibet baro cum vicecomite faceret
districtiones super homines suos; et si per defectum baronum
districtiones factae non fuissent, caperetur de dominico baronum
quod super homines suos restaret reddendum, et ipsi barones ad
homines suos inde caperent.' The baron's homines we take to be
freeholder; he would be absolutely liable for the tax cast upon
his villeinage. As to the tax of 1198 see Eng. Hist, Rev, iii.
501, 701; iv. 105, 108.
110. In Dial. de Scac. ii. 14, the author tells us that until
recently if a baron who owed money to the crown was insolvent,
the goods of his knights could be seized. The idea of subsidiary
liability is not too subtle for the time.
111. Above, p. 140.
112. D. B. ii. 9: 'set Comes Eustachius 1 ex illis [hidis] tenet
que non est de suis c. [100] mansionibus.'
113. D. B. ii. 233 b.
114. D. B. ii. 242 b.
115. D. B. ii. 258.
116. D. B. ii. 258.
117. D. B. ii. 447.
118. D. B. i. 45 b.
119. Two objections to our theory may be met by a note. (1) Some
manors are free of geld, and therefore to make our definition
correct we ought to say that a manor is a tenement which either
pays its geld at a single place or which would do so were it not
freed from the tax by some special privilege. A manerium does not
cease to be a manerium by being freed from geld. (2) In later
days we may well find a manor holden of another manor, so that a
plot of land may be within two manors. If this usage of the term
can be traced back into Domesday Book our doctrine is in great
jeopardy. But we have noticed no passage which clearly and
unabiguously says that a tract of land was at one and the same
time both a manerium and also a part of another manerium. To this
we must add that of the distribution of maneria T. R. E. we only
obtain casual and very imperfect tidings. If T. R. W. a free man
has been 'added to' a manerium, the commissioners have no deep
interest in the inquiry whether T. R. E. his tenement was itself
an independent manerium. A great simplification has been effected
and the number of maneria has been largely reduced.
7. Manor and Vill
After what has now been said, it is needless to repeat that
in Domesday Book the manerium and the villa are utterly different
things.(1*) In a given case the two may coincide, and throughout
a great tract of England such cases were common and we may even
say that they were normal. But in the east this was not so. We
may easily find a village which taken as a whole has been utterly
free from seignorial domination. Orwell in Cambridgeshire will be
a good example.(2*)
In King Edward's day this vill of Orwell was rated at 4
hides: probably it was somewhat underrated for at the date of the
survey it was deemed capable of finding land for nearly 6 teams.
The following table will show who held the four hides before the
Conquest: --
H. V. A.
Two sokemen, men of Edith the Fair 2/3
A sokeman, man of Abp Stigand 1 1/3
A sokeman, man of Robert Wimarc's son 1 1/3
A sokeman, man of the King 2/3
A sokeman, man of Earl AElfgar 1 1/3
A sokeman, man of Earl Waltheof 3
A sokeman, man of the King 1/3
Sigar, a man of AEsgar the Staller 1 1/3
Turbert, a man of Edith the Fair 3 1/4 5
Achil, a man of Earl Harold 1
A sokeman of the King 1
St. Mary of Chatteris 1/3
St. Mary of Chatteris 1/4
4 0
0(3*)
It will be seen that eight of the most exalted persons in the
land, the king, the archbishop, three earls, two royal marshals
or stallers, and that mysterious lady known as Edith the Fair, to
say nothing of the church of Chatteris, had a certain interest in
this little Cambridgeshire village. But then how slight an
interest it was! Every one of the tenants was free to 'withdraw
himself,' 'to give or sell his land.' Now we cannot say that all
of them were peasants. Achil the man of Harold seems to have had
other lands in the neighbouring villages of Harlton and
Barrington.(4*) It is probable that Turbert, Edith's man, had
another virgate at Kingston:(5*) he was one of the jurors of the
hundred in which Orwell lay.(6*) Sigar the man of AEsgar was
another juror, and held land at Thriplow, Foxton, Haslingfield
and Shepreth; he seems to have been his lord's steward.(7*) But
we may be fairly certain that the unnamed sokemen tilled their
own soil, though perhaps they had help from a few cottagers. And
they cannot have been constantly employed in cultivating the
demesne lands of their lords. They must go some distance to find
any such demesne lands. The Wetherley hundred, in which Orwell
lies, is full of the sokemen of these great folk: Waltheof, for
example, has 3 men in Comberton, 4 in Barton, 3 in Grantchester,
1 in Wratworth: but he has no demesne land, and if he had it, he
could not get it tilled by these scattered tenants. The Fair
Edith has half a hide in Haslingfield and we are told that this
belongs to the manor of Swavesey. Now at Swavesey Edith has a
considerable manor,(8*) but it can not have got much in the way
of labour out of a tenant who lived at Haslingfield, for the two
villages are a long ten miles apart. As to the king's sokemen,
their only recorded services are the avera and the inward. The
former seems to be a carrying service done at the sheriff's
bidding and to be only exigible when the king comes into the
shire, while inward seems to be the duty of forming a body guard
for the king while he is in the shire: -- if in any year the king
did not come, a small sum of money was taken instead.(9*)
Lest it should be thought that in picking out the village of
Orwell we have studiously sought a rare case, we will here set
out in a tabular form what we can learn of the state of the
hundred in which Orwell lies. The Wetherley hundred contained
twelve vills: it was a land of true villages which until very
lately had wide open fields.(10*) In the Confessor's day the
lands in it were allotted thus: --
Cambridgeshire. Wetherley Hundred(11*)
1. COMBERTON. A vill of 6 hides.
H. V. A. C.
B.
1. Seven sokemen of the King 1 1 0
A sokeman, man of Earl Waltheof | 4
0
A sokeman, man of Abp Stigand | 3 0
2. A man of Earl Waltheof 1 15 1
0
3. A sokeman, man of the King 1 0
A sokeman, man of Abp Stigand 1 15 2
0
A sokeman, man of Earl Waltheof 1 15
4. The King 2 2 0 5
0
5 3 15(12*) 12
0
II. BARTON. A vill of 7 hides.
1. Two sokemen, men of Earl
Waltheof 1 1 15
A sokeman, man of Earl Waltheof 3 15(13*) 5
0
A sokeman, man of Earl Waltheof 1 0
2. Juhael, the King's hunter 1 0 0 1
0
3. A sokeman, man of Edith the Fair 2 0
4. Twenty-three sokemen of the King 3 0 0 6
0
7 0 0 12
0
III. GRANTCHESTER. A vill of 7 hides.(14*)
1. Five sokemen, men of the King 3 0 1
0
2. Two sokemen, men of the King 2 1 0 6
0
A sokeman, man of AEsgar the Staller 2 0
3. A sokeman, man of Earl AElfgar 3 0
Three sokemen, men of Earl 4
0
Waltheof 2 0 0
4. Godman, a man of Edith the Fair 1 15 1
0
5. Juhael, the King's hunter 1 0
4
6. Wulfric, the King's man 15
3
7 0 0 12
7
IV. HASLINGFIELD. A vill of 20 hides.
1. The King 7 1 0 8
0
2. Five sokemen, men of the King 3 0 0
A sokeman, man of AEsgar the 4
0
Staller 1 3 0
3. Ealdred, a man of Edith the Fair 1 0 15 1
4
4. Edith the Fair, belonging to Swavesey 2 0
4
5. Sigar, a man of AEsgar the Staller 5 0 0 6
0
6. Two sokemen of the King 1 1 3 2
0
7. Merewin, a man of Edith the Fair 12 0
0
20 0 0 22
0
V. HARLTON. A vill of 5 hides.
H. V. A. C. B.
1. Achil, a King's thegn and under
him five sokemen of whom
four were his men while the
fifth was the man of Ernulf 4 0 0 6
0
2. Godman, a man of AEsgar the Staller 1 0 0 1
0
5 0 0 7
0
VI. BARRINGTON. A vill of 10 hides.
1. Eadric Púr, a King's thegn 3 0
Fifteen sokemen, men of the King 4 1 15
Four sokemen, men of Earl AElfgar 2 0 15
Three sokemen, men of AEsgar the 11
0
Staller 1 0 0
Eadric Púr, holding of the Church
of Chatteris 15
2. The Church of Chatteris 2 0 0 4
0
3. Ethsi, holding of Robert Wimarc's son 20
3
4. Achil the Dane, a man of Earl Harold 40
6
5. A sokeman, man of the King 15
2
11 0 0(15*) 17
3
VII. SHEPRETH. A vill of 5 hides.
1. Four sokemen, men of the King 1/2 0 15 2
2
A sokeman, man of Earl AElfgar
2. The Church of Chatteris 1 1 15 1
4
3. Sigar, a man of AEsgar the Staller 1 0 0 1
0
4. Heming, a man of the King 1 15
4
5. The Church of Ely 15
2
5 0 0 5
4
VIII. ORWELL. A vill of 4 hides.
1. Two sokemen, men of Edith the Fair 20
A sokeman, man of Abp Stigand 1 10
A sokeman, man of Robert 1
4
Wimarc's son 1 10
A sokeman, man of the King 20
A sokeman, man of Earl AElfgar 1 10
2. A sokeman, man of Earl Waltheof 3 0 1
0
A sokeman, man of the King 10
3. Sigar, a man of AEsgar the Staller 1 10
4
4. Turbert, a man of Edith the Fair 3 12 1/2 1
4
5. Achil, a man of Earl Harold 1 0
2
6. A sokeman, man of the King 1 0
3
7. The Church of Chatteris 10
1
8. The Church of Chatteris 7 1/2
1/2
4 0 0 5
2 1/2
IX. WRATWORTH. A vill of 4 hides.
1. A sokeman, man of Edith the Fair 3 10
A sokeman, man of Abp Stigand 3 0
A sokeman, man of Earl AElfgar 1 10 3
0
A sokeman, man of Robert Wimarc's son 10
A sokeman, man of the King 20
2. A sokeman, man of Earl Waltheof 2 20
A sokeman, man of Robert Wimarc's son 10 1
0
3. A sokeman, man of Edith the Fair 1 10
4
4. A sokeman, man of the King 1 0
3
5. Two sokemen, men of the King 2 0
4
4 0 0 5
3
X. WHITWELL. A vill of 4 hides.
H. V. A. C. B.
1. A sokeman, man of Earl AElfgar 1 20
A sokeman, man of Robert
Wimarc's son 1 0 1 4
A sokeman, man of the King 2 0
2. A sokeman, man of Abp Stigand 15
A sokeman, man of Edith the Fair 10 4
[A sokeman] 15
3. Six sokemen, men of the King 1 1 0
A sokeman, man of Robert
Wimarc's son 2 0 2 0
A sokeman, man of Earl AElfgar 1 0
4. Godwin, a man of Edith the Fair 2 0 1 0
____________ _____
4 0 0 5 0
XI. WIMPOLE. A vill of 4 hides.
1. Edith the Fair 2 2 15 3 0
2. Earl Gyrth 1 1 15 2 0
____________ ______
4 0 0 5 0
XII. ARRINGTON. A vill of 4 hides.
1. AElfric, a King's thegn 1 1 10
A sokeman, man of Earl Waltheof 1 0 0
A sokeman, man of the Abbot of
Ely 1 0 0 8 0
A sokeman, man of Robert Wimarc's son 20
2. A man of Edith the Fair 2 0 4
_____________________
4 0 0(16*)8 4
Now if by a 'manor' we mean that our historical economists
usually mean when they use that term, we must protest that before
the Norman Conquest there were very few manors in the Wetherley
hundred. In no case was the whole of a village coincident with a
manor, with a lord's estate. The king had considerable manors in
Comberton and Haslingfield. Sigar had a manor at Haslingfield;
the church of Chatteris had a manor at Barrington besides some
land at Shepreth; Wimpole was divided between Edith and Earl
Gyrth; Harlton between Achil and Godman. But in Barton,
Grantchester, Shepreth, Orwell, Wratworth, Whitwell and Arrington
we see nothing manorial, unless we hold ourselves free to use
that term of a little tenement which to all appearance might
easily be cultivated by the labour of one household, at all
events with occasional help supplied by a few cottagers. Indeed
it is difficult to say what profit some of the great people whose
names we have mentioned were deriving from those of their men who
dwelt in the Wetherley hundred. We take the Mercian earl for
example.(17*) One of the sokemen of Grantchester, four of the
sokemen of Barrington, one of the sokemen of Shepreth, one of the
sokemen of Orwell, one of the sokemen of Wratworth, two of the
sokemen of Whitwell were AElfgar's men. That AElfgar got a little
money or a little provender out of them is probable, that they
did some carrying service for him is possible and perhaps they
aided him at harvest time on some manor of his in another part of
the county; but that they were not the tillers of his land seems
clear.(18*)
What is more, our analysis of this Wetherley hundred enables
us to drive home the remark that very often a sokeman was not the
sokeman of his lord or, in other words, that he was not under
seignorial justice.(19*) AElfgar had ten sokemen scattered about
in six villages. Did he hold a court for them? We think not. Did
they go to the court of some distant manor? We think not. The
court they attended was the Wetherley hundred-moot. One of the
sokemen in Arrington was in a somewhat exceptional position --
exceptional, that is, in this hundred. Not only was he the man of
the Abbot of Ely, but his soke belonged to the Abbot; and if he
sold his tenement, and this he could do without the Abbot's
consent, the soke over his land would 'remain' to the Abbot.(20*)
He was not only his lord's man but his lord's justiciable and
probably attended some court outside the hundred. But for the
more part these men of Wetherley were not the justiciables of
their lords. It was a very free hundred when the Normans came
there: much too free for the nation's welfare we may think, for
these sokemen could go with their land to what lord they pleased.
Also be it noted in passing that the churches have little in
Wetherley.
In 1086 there had been a change. The sokemen had disappeared.
The Norman lords had made demesne land where their English
antecessores possessed none. Count Roger had instituted a
seignorial court at Orwell. He had borrowed three sokemen 'to
hold his pleas' from Picot the sheriff and had refused to give
them up again.(21*) Apparently they had sunk to the level of
villani. Two centuries afterwards we see the hundred of Wetherley
once more. There is villeinage enough in it. The villein at
Orwell, for example, holds only 10 acres but works for his lord
on 152 days in the year, besides boon-days.(22*) And yet we
should go far astray if we imposed upon these Cambridgeshire
villages that neat manorial system which we see at its neatest
and strongest in the abbatial cartularies. The villages do not
become manors. The manors are small. The manors are intermixed in
the open fields. There are often freeholders in the village who
are not the tenants of any lord who has a manor there. A villein
will hold two tenements of two lords. The villein of one lord
will be the freeholder of another. The 'manorial system' has been
forced upon the villages, but it fits them badly.(23*)
In the thirteenth century the common field of a
Cambridgeshire village was often a very maze of proprietary
rights, and yet the village was an agrarian whole. Let us take,
for example, Duxford as it stood in the reign of Edward I.(24*)
We see 39 villein tenements each of which has fourteen acres in
the fields. These tenements are divided between five different
manors. Four of our typical 'townsmen' hold of Henry de Lacy, who
holds of Simon de Furneaux, who holds of the Count of Britanny,
who holds of the king. Two hold of Ralph of Duxford, who holds of
Basilia wife of Baldwyn of St George, who holds of William
Mortimer, who holds of Simon de Furneaux, who holds of the Count
of Britanny, who holds of the king. Eight hold of the Templars,
who hold of Roger de Colville, who holds of the Earl of
Albemarle, who holds of the king. Nine hold of William le Goyz,
who holds of Henry of Boxworth, who holds of Richard de Freville,
who holds of the king. Sixteen hold of John d'Abernon, who holds
of the Earl Marshal, who holds of the king. Three of the greatest
'honours' in England are represented. Three monasteries and two
parochial churches have strips in the fields. And yet there are
normal tenements cut according to one pattern, tenements of
fourteen acres the holders of which, though their other services
may differ, pay for the more part an equal rent.(25*) The village
seems to say that it must be one, though the lords would make it
many. And then we look back to the Confessor's day and we see
that a good part of Duxford was held by sokemen.(26*)
Perhaps we shall be guilty of needless repetition; but what
is written in Domesday Book about maneria is admirably designed
for the deception of modern readers whose heads are full of 'the
manorial system.' Therefore let us look at two Hertfordshire
villages. In one of them there is a manerium which Ralph Basset
holds of Robert of Ouilly.(27*) It has been rated at 4, but is
now rated at 2 hides. There is land for 4 teams. In demesne are 2
teams; and 3 1/2 villani with 2 sokemen of 1 hide and 5 bordarii
have 2 teams. There are 1 cottager and 1 serf and a mill of 10
shillings and meadow for 3 teams. It is now worth £3; in King
Edward's day it was worth £5. Now here, we say, is a pretty
little manor of the common kind. Let us then explore its past
history. 'Five sokemen held this manor.' Yes, we say, before the
Conquest this manor was held in physically undivided shares by
five lords. Their shares were small and they were humble people;
but still they had a manor. But let us read further. 'Two of them
were the men of Brihtric and held 1 1/2 hides; other two were the
men of Osulf the son of Frane and held 1 1/2 hides; and the fifth
was the man of Eadmer Atule and held a hide.' We will at once
finish the story and see how Robert of Ouilly came by this manor.
'No one of these five sokemen belonged to his antecessor Wigot;
every one of them might sell his land. One of them bought (i.e.
redeemed) his land for nine ounces of gold from King William, so
the men of the hundred say, and afterwards turned for protection
to Wigot.' So Robert's title to this manor is none of the best.
But are we sure that before the Conquest there was anything that
we should call a manor? These five sokemen who have unequal
shares, who have three different lords, who hold in all but 4
team-lands, whose land is worth but £5, do not look like a set of
co-parceners to whom a 'manor' has descended. When Robert of
Ouilly has got his manor there are upon it 2 sokemen, 3 villeins,
5 bordarii, a cottager and a serf. It was not a splendid manor
for five lords.
We turn over a few pages. Hardouin of Eschalers has a manor
rated at 5 1/2 hides.(28*) It contains land for 8 teams. In with
demesne are 2 hides less 20 acres, and 3 teams; 11 villani the
priest and 5 bordarii have 5 teams. There are 4 cottagers and 6
serfs. It is worth £9; in the Confessor's day it was worth £10.
Who held this manor in the past? Nine sokemen held it. Rather a
large party of joint lords, we say; but still, families will
grow. Howbeit, we must finish the sentence: -- 'Of these, one,
Sired by name, was the man of Earl Harold and held 1 hide and 3
virgates for a manor; another, Alfred, a man of Earl AElfgar,
held 1 1/2 hides for a manor; and the other seven were sokemen of
King Edward and held 2 hides and 1 virgate and they supplied the
sheriff with 9 pence a year or 2 1/4 averae (carrying services).'
No, we have not been reading of the joint holders of a 'manor';
we have been reading of peasant proprietors. Two of them were
substantial folk; each of the two held a manerium at which geld
was paid; the other seven gelded at one of the king's maneria
under the view of his bailiffs. Maneria there have been
everywhere; but 'manors' we see in the making. Hardouin has made
one under our eyes.
We hear the objection that, be it never so humble, a manor is
a manor. But is that truism quite true? If all that we want for
the constitution of a manor is a proprietor of some land who has
a right to exact from some other man, or two or three other men,
the whole or some part of the labour that is necessary for the
tillage of his soil, we may indeed see manors everywhere and at
all times. Even if we introduce a more characteristically
medieval element and demand that the tillers shall be neither
menial servants nor labourers hired for money, but men who make
their living by cultivating for their own behoof small plots
which the proprietor allows them to occupy, still we shall have
the utmost difficulty if we would go behind manorialism. But
suppose for a moment that we have a village the land of which is
being held by nine sokemen, each of whom has a hide or half-hide
scattered about in the open fields, and each of whom controls the
labour of a couple of serfs, shall we not be misleading the
public and ourselves if we speak of nine manors or even of nine
'embryo manors'? At any rate it is clear enough that if these
estates of the sokemen are 'embryo manors,' then these embryos
were deposited in the common fields. In that case the common
fields, the hides and yardlands of the village are not the
creatures of manorialism.
We have seen free villages; we have seen a free hundred. We
might have found yet freer hundreds had we gone to Suffolk. We
have chosen Cambridgeshire because Cambridgeshire cannot be
called a Danish county, except in a sense in which,
notwithstanding the wasted condition of Yorkshire, about one half
of the English nation lived in Danish counties. When men divide
up England between the three laws, they place Cambridgeshire
under the Danelaw; but to that law they subject about one half of
the inhabitants of England. There may have been many men of
Scandinavian race in Cambridgeshire; but we find hundreds not
wapentakes, hides not carucates, while among the names of
villages there are few indeed which betray a Scandinavian origin.
The Wetherley hundred was not many miles away from the classic
fields of Hitchin.(29*)
But in truth we must be careful how we use our Dane.
Yorkshire was a Danish county in a sense in which Cambridgeshire
was not Danish; it was a land of trithings and wapentakes, a land
without hides, where many a village testified by its name to a
Scandinavian settlement. And yet to all appearance it was in the
Confessor's day a land where the manors stood thick.(30*) Then we
have that wonderful contrast between Yorkshire and Lincolnshire
which Ellis summed up in these figures: --
Sochemanni Villani Bordarii
Lincolnshire 11,503 7,723 4,024
Yorkshire 447 5,079 1,819
Perhaps this contrast would have been less violent if
Yorkshire had not been devastated: but violent it is and must be.
It will provoke the remark that the 'faults' (if any faults there
be) in a truly economic stratification of mankind are not likely
to occur just at the boundaries of the shires, whereas so long as
each county has a court from which there is no appeal to any
central tribunal, we may expect to find that lines which have
their origin in fiscal practice will be sharp lines and will
coincide with the metes and bounds of jurisdictional districts.
Nor should it escape remark that the names by which a grand
distinction is expressed are in their origin very loose terms and
etymologically ill-fitted to the purpose that they are serving.
In English the villanus is the túnesman or, as we should say, the
villager. And yet to all seeming the sokeman is essentially a
villager. What is more, the land where the sokemen and 'free men'
lived was a land of true villages, of big villages, of limitless
'open fields,' whereas the hamleted west was servile. Then again
sokeman is a very odd term. If it signified that the man to whom
it is applied was always the justiciable of the lord to whom he
was commended, we could understand it. Even if this man were
always the justiciable of a court that had passed into private
hands, we could still understand it. But apparently there are
plenty of sokemen whose soke 'is' or 'lies' in those hundred
courts that have no lord but the king. The best guess that we can
make as to the manner in which they have acquired their name is
that in an age which is being persuaded that some 'service' must
be done by every one who holds land, suit of court appears as the
only service that is done by all these men. They may owe other
services; but they all owe suit of court. If so we may see their
legal successors in those freeholders of the twelfth century who
are 'acquitting' their lords and their villages by doing suit at
the national courts.(31*) But when a new force comes into play
(and the tribute to the pirate was a new and a powerful force)
new lines of demarcation must be drawn, new classes of men must
be formed and words will be borrowed for the purpose with little
care for etymological niceties. One large and widely-spread class
may find a name for itself in a district where the ordinary
'townsmen' or villagers are no longer treated as taxpayers
responsible to the state, while some practice peculiar to a small
part of the country may confer the name of 'sokemen' on those
tillers of the soil who are rated to the geld. We are not arguing
that this distinction, even when it first emerged, implied
nothing that concerned the economic position of the villein and
the sokeman. The most dependent peasants would naturally be the
people who could not be directly charged with the geld, and the
peasants who could not pay the geld would naturally become
dependent on those who would pay it for them; still we are not
entitled to assume that the fiscal scheme accurately mirrored the
economic facts, or that the varying practice of different moots
and different collectors may not have stamped as the villeins of
one shire those who would have been the sokemen of another.(32*)
Be this as it may, any theory of English history must face
the free, the lordless, village and must account for it as for
one of the normal phenomena which existed in the year of grace
1066. How common it was we shall never know until the material
contained in Domesday Book has been geographically rearranged by
counties, hundreds and vills. But whether common or not, it was
normal, just as normal as the village which was completely
subject to seignorial power. We have before us villages which,
taken as wholes, have no lords. What is more, it seems obvious
enough that, unless there has been some great catastrophe in the
past, some insurrection of the peasants or the like, the village
of Orwell and other villages might be named by the dozen -- has
never had a lord. Such lordships as exist in it are plainly not
the relics of a dominion which has been split up among divers
persons by the action of gifts and inheritances. The sokemen or
Orwell have worshipped every rising sun. One has commended
himself to the ill-fated Harold, another to the ill-fated
Waltheof, a third has chosen the Mercian AElfgar, a fourth has
placed himself under the aspiring Archbishop; yet all are free to
'withdraw.' We have here a very free village indeed, for its
members enjoy a freedom of which no freeholder of the thirteenth
century would even dream, and in a certain sense we have here a
free village community. How much communalism is there? Of this
most difficult question only a few words will now be said, for
our guesses about remote ages we will yet a while reserve.
In the first place, we cannot doubt that the 'open field
system' of agriculture prevails as well in the free villages as
in those that are under the control of a lord. The sokeman's hide
or virgate is no ring-fenced 'close' but is composed of many
scattered strips. Again, we can hardly doubt that the practice of
'co-aration' prevailed. The sokeman had seldom beasts enough to
make up a team. It is well known that the whole scheme of
land-measurements which runs through Domesday Book is based upon
the theory that land is ploughed by teams of eight oxen. It is
perhaps possible that smaller teams were sometimes employed; but
when we read that a certain man 'always ploughed with three
oxen,'(33*) or used 'to plough with two oxen but now ploughs with
half a team,'(34*) or 'used to plough with a team but now ploughs
with two oxen,'(35*) we are reading, not of small teams, but of
the number of oxen that the man in question contributed towards
the team of eight that was made up by him and his neighbours.
When of a piece of land in Bedfordshire it is said that 'one ox
ploughs there,' this means that the land in question supplies but
one ox in a team of eight;(36*) and here and not in any monstrous
birth do we find the explanation of 'terra est dimidio bovi et
ibi est semibos':(37*) -- there is a sixteenth part of a teamland
and its tenant along with some other man provides an ox. There
may have been light ploughs as well as heavy ploughs, but the
heavy plough must have been extremely common, since the term
'plough team' (caruca) seems invariably to mean a team of eight.
Then one notable case meets our eye in which the ownership of
land, of arable land, seems to be attributed to a village
community. In Goldington, a village in Bedfordshire, Walter now
holds a hide; there is land for one team and meadow for half a
team. 'The men of the vill held this land in common and could
sell it.'(38*) Apparently the men of the vill were AElfwin Sac, a
man of the Bishop of Lincoln who held half a team-land and 'could
do what he liked with it,' nine sokemen who held three team-lands
between them, three other sokemen who held three team-lands, and
AElfmaer, a man of Asgil who held three team-lands.(39*) How it
came about that these men, besides holding land in severalty,
held a tract in common, we are left to guess. Nor can we say
whether such a case was usual or unusual. Very often in Little
Domesday we meet an entry which tells how x free men held y acres
and had z teams; for example, how 15 free men held 40 acres and
had 2 teams.(40*) In general we may well suppose that each of
them held his strips in severalty, but we dare not say that such
a phrase never points to co-ownership.
Then as to such part of the land as is not arable: -- Even in
the free village a few enclosed meadows will probably be found;
but the pasture ground lies open for 'the cattle of the vill.' At
the date of the survey, though several Norman lords have estates
in one vill, the common formula used in connexion with each
estate is, not 'there is pasture for the cattle of this manor, or
of this land,' but 'there is pasture for the cattle of the vill.'
Occasionally we read of 'common pasture in a context which shows
that the pasture is common not to several manorial lords but to
the villeins of one lord.(41*) In the hundred of Coleness in
Suffolk there is a pasture which is common to all the men of the
hundred.(42*) But, as might be expected, we hear little of the
mode in which pasture rights were allotted or regulated. Such
rights were probably treated as appurtenances of the arable land:
-- 'The canons of Waltham claim as much wood as belongs to one
hide.'(43*) If the rights of user are known, no one cares about
the bare ownership of pasture land or wood land: -- it is all one
whether we say that Earl Edwin is entitled to one third of a
certain wood or to every third oak that grows therein.(44*)
Sometimes the ownership of a mill is divided into so many
shares that we are tempted to think that this mill has been
erected at the cost of the vill. In Suffolk a free man holds a
little manerium which is composed of 24 acres of land, 1 1/2
acres of meadow and 'a fourth part of the mill in every third
year.'(45*): -- he takes his turn with his neighbours in the
enjoyment of the revenue of the mill. We may even be led to
suspect that the parish churches have sometimes been treated as
belonging to the men of the vill who have subscribed to erect or
to endow them. In Suffolk a twelfth part of a church belongs to a
petty manerium which contains 30 acres and is cultivated by two
bordiers with a single team.(46*) When a parish church gets its
virgate by the 'charity of the neighbours,'(47*) when nine free
men give it twenty acres for the good of their souls,(48*) we may
see in this some trace of communal action.
Incidentally we may notice that the system of virgate
holdings seems quite compatible with an absence of seignorial
control. In the free village, for example in Orwell, we shall
often find that one man has twice, thrice or four times as much
as another man: -- the same is the case in the manorialized
villages of Middlesex, where a villein may have as much as a hide
or as little as a half-virgate; but all the holdings will bear,
at least in theory, some simple relation to each other. Thus in
Orwell the virgates are divided into thirds and quarters, and in
several instances a man has four thirds of a virgate. In Essex
and East Anglia, though we may find many irregular and many very
small holdings, tenements of 60, 45, 40, 30, 20, 15 acres are far
commoner than they would be were it not that a unit of 120 acres
will very easily break into such pieces. Domesday Book takes no
notice of family law and its 'vendere potuit' merely excludes the
interference of the lord and does not imply that a man is at
liberty to disappoint his expectant heirs. Very possibly there
has been among the small folk but little giving or selling of
land.
Nor is a law which gives the dead man's land to all his sons
as co-heirs a sufficient force to destroy the system of hides and
virgates when once it is established by some original allotment.
In the higher ranks of society we see large groups of thegns
holding land in common, holding as the Normans say 'in parage.'
We can hardly doubt that they are co-heirs holding an inheritance
that has not been physically partitioned.(49*) Sometimes it is
said of a single man that he holds in parage.(50*) This gives us
a valuable hint. Holding in parage implies that one of the
'pares,' one of the parceners -- as a general rule he would be
the eldest of them -- is answerable to king and lord for the
services due from the land, while his fellows are bound only to
him; they must help him to discharge duties for which he is
primarily responsible.(51*) This seems the import of such
passages as the following -- 'Five thegns held two bovates; one
of them was the senior [the elder, and we may almost say the
lord] of the others'(52*) -- 'Eight thegns held this manor; one
of them Alli, a man of King Edward, was the senior of the
others'(53*) -- 'Godric and his brothers held three carucates;
two of them served the third'(54*) -- 'Chetel and Turver were
brothers and after the death of their father they divided the
land, but so that Chetel in doing the king's service should have
help from Turver his brother'(55*) -- 'Siwate, Alnod, Fenchel and
Aschil divided the land of their father equally, and they held in
such wise that if there were need for attendance in the king's
host and Siwate could go, his brothers were to aid him [with
money and provisions]; and on the next occasion another brother
was to go and Siwate like the rest was to help him; and so on
down the list; but Siwate was the king's man.'(56*) No doubt
similar arrangements were made by co-heirs of lowlier
station.(57*) The integrity of the tenement is maintained though
several men have an interest in it. In relation to the lord and
the state one of them represents his fellows. When the shares
become very small, some of the claimants might be bought out by
the others.(58*)
But, to return to the village, we must once more notice that
the Canons of St Paul's have let their manor of Willesden to the
villeins.(59*) This leads us to speculate as to the incidence and
collection of those great provender rents of which we read when
royal manors are described. In King Edward's day a royal manor is
often charged with the whole or some aliquot share of a 'one
night's farm,' that is one day's victual for the king's
household. Definite amounts of bread, cheese, malt, meat, beer,
honey, wool have to be supplied; thus, for example, Cheltenham
must furnish three thousand loaves for the king's dogs and King's
Barton must do the like.(60*) Then too Edward the sheriff
receives as the profits of the shrievalty of Wiltshire, 130 pigs,
32 bacons, certain quantities of wheat, malt, oats, and honey,
400 chicken, 1600 eggs, 100 cheeses, 100 lambs, 52 fleeces.(61*)
Between the king and the men of the manor, no doubt there stands
a farmer, either the sheriff or some other person, who is bound
to supply the due quantity of provender; but to say that this is
so does not solve the problem that is before us. We have still to
ask how this due quantity is obtained from the men of the
village. It is a quantity which can be expressed by round
figures; it is 3000 dog-cakes, or the like. We do not arrive at
these pretty results by adding up the rents due from individuals.
Again, just in the counties which are in the homes of freedom we
hear much of sums of money that are paid to a lord by way of free
will offering.(62*) In Norfolk and Suffolk the villagers will
give a yearly gersuma, in Lincoln they will pay a yearly tailla,
and this will be a neat round sum; very often it is 20 shillings,
or 40 or 10.
In this particular we seem to see an increase of something
that may be called communalism, as we go backwards. Of course in
the cartularies of a later age we may discover round sums of
money which, under the names of 'tallage' or 'aid' are imposed
upon the vill as a whole; but in general we may accept the rule
that tributes to be paid by the vill as a whole, in money or in
kind, are not of recent origin. They are more prominent in the
oldest than in other documents. As examples, we may notice the
'cornage' of the Boldon Book -- one vill renders 20 shillings,
another 30 shillings for cornage;(63*) also the contributions of
sheep, poultry, bread and cloth which the vills of Peterborough
Abbey bring to the monks on the festival of their patron
saint-one vill supplying ten rams and twenty ells of cloth,
another four rams, five ells of cloth, ten chicken and three
hundred loaves.(64*) But then we have to notice that a village
which has to pay a provender rent or even a tailla or gersuma is
not altogether a free village. Its communal action is called out
by seignorial pressure.
And as we go backwards the township seems to lose such
definiteness as is given to it by the police law of the
thirteenth century.(65*) This was to be expected, for such law
implies a powerful, centralized state, which sends its justices
round the country to amerce the townships and compel these local
communities to do their duties. Once and once only does the
township appear in the Anglo-Saxon dooms. This is in a law of
Edgar. If a man who is on a journey buys cattle, then on his
return home he must turn them on to the common pasture, 'with the
witness of the township.' If he fails to do so, then after five
nights the townsmen are to give information to the elder of the
hundred, and in that case they and their cattle-herd will be free
of blame, and the men who brought the cattle into the town will
forfeit them, half to the lord and half to the hundred. If, on
the other hand, the townsmen fail in the duty of giving
information, their herd will pay for it with his skin.(66*) The
township has very little organization of which the state can make
use. It does not seem even to have an 'elder' or head-man, and,
from the threat of a flogging, we may gather that its common
herdsman will be a slave. Purchases of cattle cannot be made
'with the witness of the township'; the purchaser ought to seek
out two or three of those twelve standing witnesses who are
appointed for every hundred.(67*) So again, in the twelfth
century we see the finder of a stray beast bringing it into the
vill; he conducts it to the church-door and tells his story to
the priest, the reeve and as many of the best men of the vill as
can be got together. Then the reeve sends to the four
neighbouring vills, calls in from each the priest, the reeve and
three or four men and recounts the tale in their presence. Then
on the following day he goes to the head-man of the hundred and
puts the whole matter before him and delivers up the beast to
him, unless indeed the place where it was found straying was
within the domain of some lord who had sake and soke.(68*) Here
again, the organization of the township appears to be of a most
rudimentary kind. It has no court, unless its lord has sake and
soke; it has no power to detain an estray for safe custody. In
this very simple case it requires the help of other vills and
must transit the cause to the hundred court. And so again, though
there may be some reason for thinking that at one time the murder
fine -- the fine payable if the slayer of a foreigner was not
arrested -- was primarily eligible from the vill in which the
corpse was found, the hundred being but subsidiarily liable,
still this rule seems to have been soon abandoned and the burden
of the fine, a fine far too heavy for a single vill, was cast
upon the hundred.(69*) For all this, however, the law knew and
made use of the township. The Domesday commissioners required the
testimony of the priest, the reeve and six villani of every vill.
So soon as the law about suit to the hundred court becomes at all
plain, the suit is due rather from vills than from men, and the
burden is discharged by the lord of the vill or his steward, or,
if neither of them can attend, then by the priest, the reeve and
four of the vill's best men.(70*)
How could these requirements be met by a vill which had no
lord? It would be a fair remark that the existence of such vills
is not contemplated by the Norman rulers. The men who will
represent the vill before the Domesday commissioners will in
their eyes be villani. This assumption is becoming true enough.
We have seen Orwell full of sokemen; in 1086 there is never a
sokeman in it; there is no one in it who is above the rank of a
villein. Count Roger and Walter Giffard, Count Alan and Geoffrey
de Mandeville can make such arrangements about the suit of
Orwell, the reeveship of Orwell, as they think fit. Everywhere
the Frenchmen are consolidating their manors, creating demesne
land where their English antecessores had none, devising
scientific frontiers, doing what in them lies to make every vill
a manor. Thus is evolved that state of things which comes before
us in the thirteenth century. The work of the foreigners was done
so completely that we can see but very little of the institutions
that they swept away.
On the whole, however, we shall do well not to endow the free
township of the Confessor's day with much organization. We may be
certain that, at least as a general rule, it had no court; we may
doubt very gravely whether it always had any elder, head-man, or
reeve. Often it was a small and yet a heterogeneous and a
politically distracted body. Some of its members might be
attached to the house of Godwin, some had sworn to live and die
for the house of Leofric. Just because it is free it has few, if
any, communal payments to make. Only if it comes under a single
lord will it have to render a provender rent, a tailla or
gersuma. As a sphere for communal action there remains only the
regulation of the arable lands, the woods and waste. We cannot
say for certain that these give scope for much regulation. The
arable strips are held in severalty; if by chance some of them
are held in common, this in all probability is a case rather of
co-ownership than of communal ownership. The pasture rights may
well be regarded as appurtenances of the arable strips. The
practice of 'co-aration' need not be enforced by law. the man who
will not help his neighbours must be content to see his own land
unploughed. The course of agriculture is fixed and will not be
often or easily altered. The 'realism' which roots every right
and duty in a definite patch of soil, the rapid conversion of new
arrangements into immemorial customs, the practice of taking turn
and turn about, the practice of casting lots, these will do much
towards settling questions such as our modern imaginations would
solve by means of a village council. No doubt, from time to time
a new departure is made; new land is reclaimed from the waste,
perhaps the pasture rights are stinted or redistributed, a mill
is built or a church is endowed; -- but all this requires no
periodic assemblies, no organization that we dare call either
permanent or legal. Once in five years or so there may be
something to be done, and done it will be by a resolution of the
villagers which is or calls itself a unanimous resolution. If the
Cambridgeshire townships had been land-owning corporations, each
of them would have passed as a single unit into the hands of some
Norman baron. But this did not happen. On the contrary, the
Norman barons had to content themselves with intermixed strips;
the strips of AElfgar's men went to Count Roger, the strips of
Edith's men went to Count Alan. We are far from denying the
existence of a communal sentiment, of a notion that somehow or
another the men of the vill taken as a whole owned the lands of
the vill, but this sentiment, this notion, if strong, was vague.
There were no institutions in which it could realize itself,
there was no form of speech or thought in which it could find an
apt expression. It evaded the grasp of law. At the touch of
jurisprudence the township became a mere group of individuals,
each with his separate rights.(71*)
NOTES:
1. D. B. ii. 174: 'Hec villa fuit in duobus maneriis T. R. E.'
Ibid. i. 164: 'De his 2 villis fecit Comes W. unum manerium.'
2. Inquisitio, 77-9.
3. This result comes out correctly if 1 H = 4 V = 120 A. For the
state of this vill T. R. W. see Round, Feudal England, 40.
4. His plot at Orwell is said to belong to Harlton. Then at
Harlton we find an Achil with sokemen under him, and though in D.
B. he is described as a king's thegn, this is not incompatible
with his being the man of Harold for some of his lands. At
Barrington Achillus Danaus homo Haroldi has a holding of 40
acres.
5. Inquisitio, 86.
6. Ibid. 68.
7. Ibid. 43, 44, 45, 73, 76.
8. D. B. i. 195.
9. D. B. i. 139: 'De consuetudine 1 averam inveniebat cum Rex in
scyra veniebat, si non 5 den. reddebat.' D. B. i. 190,
'[Sochemanni in Fuleberne] reddunt per annum 8 libras arsas et
pensatas et unoquoque anno 12 equos et 12 inguardos si Rex in
vicecomitatu veniret, si non veniret 12 sol. et 8 den.; T. R. E.
non reddebant vicecomiti nisi averas et inguardos vel 12 sol. et
8 den. et superplus invasit Picot [vicecomes] super Regem.'
10. Wratworth has completely disappeared from the modern map; its
territory seems to be included in that of the present Orwell. See
Rot. Hund. ii. 559 and Lysons, Magna Britannia, ii. 243. A small
hamlet called Malton seems to represent it. Whitwell also is no
longer the name of a village, while the modern Coton is not
mentioned in D. B. There is now a Whitwell Farm near the village
of Coton, but in the parish of Barton. The modern Coton does not
seem to be the ancient Whitwell, for on Subsidy Rolls we may find
Whitwell annexed to Barton and Coton to Grantchester.
11. The figures in our first column represent the division of the
vill among the Norman lords. H. V. A. stand for Hides, Virgates,
Acres. By C. and B. we signify the Carucae and Boves for which
'there was land.'
12. There is some small error in this case.
13. A small conjectural emendation.
14. The Inq. Com. Cant. says 6 hides.
15. An error of one hide in the particulars. The two records do
not fully agree.
16. A small emendation justified by Inq. Eliensis (Hamilton, p.
110).
17. AElfgar died before King Edward; Freeman, Norman Conquest,
ed. 3, iii. 469, places his death in or about 1062.
18. The history of the earldoms during Edward's reign is
exceedingly obscure. See Freeman's elaborate note: Ibid., 555. In
particular Cambridgeshire seems to have lain now in one and now
in another earldom. Thus it comes about that Cambridgeshire
sokemen are commended some to AElfgar, some to Waltheof, some to
Harold, some to Gyrth. AElfgar, for example, had at one time been
earl in East Anglia. Men who had commended themselves to an earl
would, unless they 'withdrew themselves,' still be his men though
he had ceased to be earl of their county.
19. See above, p. 137. Observe how frequently our record speaks
of 'sochemanni homines Algari' and the like. These. sokemen are
AElfgar's men; but are not properly his sokemen.
20. Inq. Com. Cant. 110. This is from the Inquisitio Eliensis.
Compare p. 113.
21. Inq. Com. Cant. 77-8.
22. Rot. Hund. ii. 558.
23. One instance may suffice. In Sawston (Rot. Hund. ii. 575-80)
are three manors, A, B, C; A has a sub-manor. One Thomas Dovenel
holds in villeinage of the lord of A; in villeinage of the lord
of B; in freehold of the lord of B; in freehold of a tenant of
the lord of B; in freehold of a tenant of a tenant of the lord of
B.
24. Rot. Hund. ii. 580.
25. On four out of the five manors the rent is 2s. 3d.; on the
fifth 3s. 0d.
26. Inq. Com. Cant. 41.
27. D. B. i. 137 b.
28. D.B. i. 141 b.
29. Inq. Com. Cant. pp. 108-110. As names of the Abbot of Ely's
we have Grimmus, sokemen in Meldreth and neighbouring villages we
have Grimmus, Alsi Cild, Wenesi, Alsi, Leofwinus, AEdricus,
Godwinus, Almarus, Aluricus frater Goduuini, AEdriz, Alsi Berd,
Alricus Godingessune, Wenestan, Alwin Blondus, Alfuuinus,
Aluredus, Alricus Brunesune, Alware, Hunud, Hunwinus, Brizstanus.
This does not point to a preponderance of Norse or Danish blood.
30. Owing to the wasted condition of Yorkshire, the information
that we obtain of the T. R. E. is meagre and perfunctory. But
what seems characteristic of this county is a holding of two or
three ploughlands which we might fairly call an embryo manor.
31. See the early extents in Cart. Rams. iii. Thus (242) at
Hemingford: 'R. V. tenet tres virgatas et dimidiam et sequitur
hundredum et comitatum.... R. H. tenet duas virgatas et sequitur
hundredum et comitatum.' Elsworth (249): 'R. filius T. duas
virgatas. Pro altera sequitur comitatum et hundredum; pro altera
solvit quinque solidos.' Brancaster (261): 'Cnutus avus Petri
tenebat terram suam libere in tempore Regis Henrici et sequebatur
comitatum et hundredum, et fuit quietus ab omni servitio.' See
also Vinogradoff, Villainage, 441 ff.
32. Some thirty years ago the whole political world of England
was agitated by controversy about the 'compound householder.' Was
he to have a vote? The historian of the nineteenth century will
not treat the compound householders as forming one homogeneous
class of men whose general status could be marked off from that
of other classes. Nor, it is to be hoped, will etymological
guesses lead him to believe that the compound householder held a
compound house. He will say that a landlord 'compounded for' the
rates of the aforesaid householder. Mutatis mutandis, may not the
villein have been the compound householder of the eleventh
century?
33. D. B. ii. 204: '3 liberi homines... semper arant cum 3
bobus.'
34. D. B. ii. 184 b.
35. D. B. ii. 192 b.
36. D. B. i. 211.
37. D. B. i. 218 b. Compare the 'dimidius porcus' of ii. 287.
38. D. B. i. 213 b; 'Hanc terram tenuerunt homines villae
communiter et vendere potuerunt.'
39. D. B. i. 210, 212 b, 213 b.
40. D. B. i. 214: 'In Meldone Johannes de Roches occupavit
iniuste 25 acras super homines qui villam tenent.' This is a
vague phrase.
41. e. g. D. B. i. 112 b: 'Colsuen homo Episcopi Constantiensis
aufert ab hoc manerio communem pasturam quae ibi adiacebat T. R.
E. et etiam T. R. W. quinque annis.'
42. D. B. ii. 339 b.
43. D. B. i. I40 b.
44. D. B. i. 75: 'tercia vero pars vel tercia quercus erat
Comitis Eduini.'
45. D. B. ii. 404 b: 'et in tercio anno quarta pars mol
[endini].'
46. D. B. ii. 291 b.
47. D. B. ii. 24 b.
48. D. B. ii. 438.
49. D. B. i. 83 : 'sex taini in paragio,' 'quatuor taini in
paragio.' Ibid. 83 b: 'novem taini in paragio.' Ibid. 168 b:
'quinque fratres tenuerunt pro 5 maneriis et poterant ire quo
volebant et pares erant.'
50. D. B. i. 96 b: 'dim. hida quam tenebat T. R. E. unus tainus
in paragio.' Ibid. 40: 'Brictric tenuit de episcopo in paragio.'
51. But it was possible for several men to be holding in parage
and yet for each of them to have a separate manerium. This seems
to imply that their holdings were physically separate and that
each holding was separately liable for geld, though as regards
other matters, e.g. military service, the division was ignored.
52. D. B. i. 291.
53. D. B. i. 145 b.
54. D. B. i. 341.
55. D. B. i. 354.
56. D. B. i. 375 b: 'Siuuate et Alnod et Fenchel et Aschil
equaliter et pariliter diviserunt inter se terram patris sui T.
R. E. et ita tenuerunt ut si OpUs fuit expeditione Regis et
Siuuate potuit ire, alii fratres iuverunt eum. Post istum, ivit
alter et Siuuate cum reliquis iuvit eum; et sic de omnibus.
Siuuate tamen fuit homo Regis.'
57. D. B. i. 206: 'sex sochemanni id est Aluuoldus et 5 fratres
eius habuerunt 4 hid. et dim. ad geldum.'
58. D. B. i. 233: 'Hanc terram tenuerunt 2 fratres pro 2
maneriis, et postea emit alter ab altero partem suam et fecit
unum manerium de duobus T. R. E.'
59. D. B. i. 127 b: 'Hoc manerium tenent villani ad firmam
canonicorum.'
60. D. B. i. 162 b.
61. D. B. i. 69.
62. D. B. ii. 118 b Yarmouth: 'De gersuma has 4 libras dant
burgenses gratis et amicitia.'
63. Thus D. B. iv. 568: 'Due ville reddunt 30 sol. de cornagio.'
Ib. 570: Queryngdonshire reddit 76 sol. de cornagio.'
64. Black Book of Peterborough, passim.
65. Hist. Engl. Law, i. 550.
66. Edgar iv. 8. 9.
67. Ibid. 6.
68. Leg. Edw. Conf. 24.
69. Leg. Edw. Conf. 15. Compare Leg. Henr. 91; Leg. Will. Conq.
i. 22; Leg. Will Conq. iii. 3
70. Leg. Henr. 7 sect. 7.
71. It is possible that the entry (i. 204) which tells how the
sokemen of Broughton enjoyed the smaller wites points to a free
village court; but we have put another interpretation upon this;
see above, p. 130.
8. The Feudal Superstructure
It remains that we should speak very briefly of the higher
ranks of men and the tenure by which they held their land. Little
accurate information can be extorted from our record. The upper
storeys of the old English edifice have been demolished and a new
superstructure has been reared in their stead. It is not the
office of Domesday Book to tell us much even of the new nobility,
of the services which the counts and barons are to render to the
king in return for their handsome endowments: -- as to the old
nobility, that has perished. Still there are some questions that
we ought to ask.
The general theory that all land tenure, except indeed the
tenure by which the king holds land in demesne, is dependent
tenure, seems to be implied, not only by many particular entries,
but also by the whole scheme of the book. Every holder of land,
except the king, holds it of (de) some lord, and therefore every
acre of land that is not royal demesne can be arranged under the
name of some tenant in chief. Even a church will hold its land,
if not of the king, then of some other lord.(1*) The terms of the
tenure are but very rarely described, for Domesday Book is no
feodary. Just now and again a tenure in elemosina is noticed and
in some of these cases this term seems already to bear the
technical sense that it will have in later days; the tenant owes
a spiritual, but no secular service.(2*) A few instances of what
later lawyers would call a 'tenure by divine service,' as
distinct from a tenure in frank-almoin, may be found.(3*) A few
words here and there betray the existence of tenure by knight's
service and of castle guard.(4*) In the servientes Regis who have
been enfeoffed in divers counties we may see the predecessors of
the tenants by serjeanty.(5*) We shall remark, however, the
absence of those abstract terms which are to become the names of
the various tenures. We read of servientes, sochemanni, villani,
burgenses, but not of seriantia,(6*) socagium, villenagium,
burgagium. As we pursue our retrogressive course through the
middle ages, we do not find that the law of personal condition
becomes more and more distinct from the law of land tenure; on
the contrary, the two become less and less separable.
It has sometimes been said that a feudal tenure was the only
kind of land tenure that the Norman conquerors could conceive. In
a certain sense this may be true, but we should have preferred to
say that probably they could not easily conceive a kind of tenure
that was not dependent: -- every one who holds land (except he be
the king) holds it of someone else. The adjective 'feudal' was
not in their vocabulary, and their use of the word feudum --
occasionally we meet the older feum(7*) -- is exceedingly
obscure. Very rarely does it denote a tenure or a mass of rights;
usually, though it may connote rights of a certain order, it
denotes a stretch of land; thus we may read of the fee of the
Bishop of Bayeux, thereby being meant the territory which the
bishop holds. Occasionally, however, we hear of a man holding
land in feudo. One instance may be enough to show that such a
phrase did not imply military tenure: -- 'William the Chamberlain
held this manor in feudo of the Queen [Matilda] at a rent of £3 a
year and after her death he held it in the same fashion of the
king.'(8*) All sense of militariness, and all sense of
precariousness, that the word has ever had in its continental
history, seems to be disappearing. Already the process has begun
which will make it applicable to every person who has heritable
rights in land. William the Chamberlain is, we take it, already a
fee farmer, that is, a rent-paying tenant with heritable
rights.(9*) As to the word beneficium, which feum or feudum has
been supplanting, we shall hardly find it with its old meaning.
It seems to be holding its own onlv within the sphere of
ecclesiastical rights, where the 'benefice' will survive until
our own day.(10*)
A yet more interesting and equally foreign word is not
unfrequently used, namely, alodium. The Norman commissioners
deemed that a large number of English tenants in Kent, Sussex,
Surrey and Hampshire and some in Berkshire had been alodiarii or
aloarii and had held in alodium or sicut alodium. The appearance
of this term in one district and ln one only is far from proving
that there had been anything peculiar in the law of that
district. It may well be a mere chance that the liberi homines of
other counties are not called alodiaries. Still in Hampshire,
where alodíaríes abounded, it was not every free man holding land
who had an alod.(11*) Perhaps we shall be right in thinking that
the term pointed to heritability: -- the free man who holds land
but has no alod has only an estate for life. Certainly it does
not mean that the tenant has no lord. The alodiary may hold his
alod 'of' his lord'.(12*) he may owe service to , his lord.(13*)
he may pay a relief.(14*) he may have no power 'to withdraw
himself with his land' from his lord.(15*) The Norman lawyers had
no speculative objection to the existence of alodiaries; it in no
way contradicted such doctrine of tenure as they had formed. In
1086 there were still alodiaries in Berkshire,(16*) and in royal
charters of a much later day there is talk of the alodiaries of
Kent as of an existing class.(17*) It is just possible that
William's commissioners saw some difference between holding in
feudo and holding in alodio. If ever they contrasted the two
words, they may have hinted that while the feudum has been given
by the lord to the man, the alodium has been brought by the man
to the lord; but we cannot be very certain that they ever opposed
these terms to each other.(18*) Such sparse evidence as we can
obtain from Normandy strengthens our belief that the wide, the
almost insuperable, gulf that modern theorists have found or have
set between 'alodial ownership' and 'feudal tenure' was not
perceptible in the eleventh century.(19*) It can be no part of
our task to trace the history of these terms alodium and feudum
behind the date at which they are brought into England but
hereafter we shall see that here in England a process had been at
work which, had these terms been in use, would have brought the
alod very near to the feud, the feud very near to the alod.
It is probable that this process had gone somewhat further in
Normandy than in England. It is probable that the Normans knew
that in imposing upon all English lands 'the formula of dependent
tenure' they were simplifying matters. They seem to think, and
they may be pretty right in thinking, that every English
land-holder had held his land under (sub) some lord; but
apparently they do not think that every English land-holder had
held his land of (de) some lord. Not infrequently they show that
this is so. Thus one Sigar holds a piece of Cambridgeshire of
Geoffrey de Mandeville; he used to hold it under AEsgar the
Staller.(20*) We catch a slight shade of difference between the
two prepositions; sub lays stress on the lord's power, which may
well be of a personal or justiciary, rather than of a proprietary
kind, while de imports a theory about the origin of the tenure;
it makes the tenant's rights look like derivative rights: -- it
is supposed that he gets his land from his lord. And at least in
the eastern counties -- so it may well have seemed to the Normans
-- matters sadly needed simplification. Even elsewhere and when a
large estate is at stake they cannot always get an answer to the
question 'Of whom was this land holden?(21*) Still they thought
that some of the greatest men in the realm had held their lands,
or some of their lands, of the king or of someone else. The
formulas which are used throughout the description of Hampshire
and some other counties seem to assume that every holder of a
manor, at all events if a layman, had held it of the king, if he
did not hold it of another lord. Tenure in feudo again they
regarded as no innovation.(22*) They saw the work of
subinfeudation: -- Brihtmaer held land of Azor and Azor of
Harold; we may well suppose that Harold held it of the king and
that some villeins held part of it of Brihtmaer, and thus we see
already a feudal ladder with no less than five rungs.(23*) They
saw that the thegns owed 'service' to their lords.(24*) They saw
the heriot; they sometimes called it a relief.(25*) We cannot be
sure that this change of names imported any change in the law;
when a burgess of Hereford died the king took a heriot, but if he
could not get the heriot he took the dead man's land.(26*) They
saw that in certain cases an heir had to 'seek' his ancestor's
lord if he wished to enjoy his ancestor's land.(27*) They saw
that many a free man could not give or sell his land without his
lord's consent. They saw that great and powerful men could not
give or sell their land without the king's consent.(28*)
They saw something very like military tenure. No matter with
which we have to deal is darker than the constitution of the
English army on the eve of its defeat. We may indeed safely
believe that no English king had ever relinquished the right to
call upon all the free men of his realm to resist an invader. On
the other hand, it seems quite clear that, as a matter of fact,
'the host' was no longer 'the nation in arms.' The common folk of
a shire could hardly be got to fight outside their shire, and
ill-armed troops of peasants were now of little avail. The only
army upon which the king could habitually rely was a small force.
The city of Oxford sent but twenty men or twenty pounds.(29*)
Leicester sent twelve men:(30*) Warwick sent ten.(31*) In
Berkshire the law was that, if the king called out the host, one
soldier (miles) should go for every five hides and should receive
from each hide four shillings as his stipend for two months'
service. If the man who was summoned made default, he forfeited
all his land to the king; but there were cases in which he might
send one of his men as a substitute, and for a default committed
by his substitute he suffered no forfeiture, but only a fine of
fifty shillings.(32*) It is probable that a similar 'five-hide
rule' obtained throughout a large part of England. The borough of
Wilton was bound to send twenty shilling or one man 'as for an
honour of five hides.'(33*) When an army or a fleet was called
out, Exeter 'served to the amount of five hides.'(34*) All this
points to a small force of well armed soldiers. For example, 'the
five-hide rule' would be satisfied if Worcestershire sent a
contingent of 240 men. But not only was the army small; it was a
territorial army; it grew out of the soil.
At first sight this 'five-hide rule' may seem to have in it
little that is akin to a feudal system of knights' fees. We may
suppose that it will work thus: -- The host is summoned; the
number of hides in each hundred is known. To dispatch a company
of soldiers proportioned to the number of the hides, for example
twenty warriors if the hundred contains just one hundred hides,
is the business of the hundred court and the question 'Who must
go?' will be answered by election, rotation or lot. But it is not
probable that the territorializing process will stop here, and
this for several reasons. An army that cannot be mobilized
without the action of the hundred moots is not a handy force.
While the hundredors are deliberating, the Danes or Welshmen will
be burning and slaying. Also a king will not easily be content
with the responsibility of a fluctuating and indeterminate body
of hundredors; he will insist, if he can, that there must be some
one person answerable to him for each unit of military power. A
serviceable system will not have been established until the
country is divided into 'five-hide units,' until every man's
holding is such an unit, or is composed of several such units, or
is an aliquot share of such an unit. Then again the holdings with
which the rule will have to deal are not homogeneous; they are
not all of one and the same order. It is not as though to each
plot of land there corresponded some one person who was the only
person interested in it; the occupiers of the soil have lords and
again those lords have lords. The king will insist, if he can,
that the lords who stand high in this scale must answer to him
for the service that is due from all the lands over which they
exercise a dominion, and then he will leave them free to settle,
as between themselves and their dependants, the ultimate
incidence of the burden: -- thus room will be made for the play
of free contract. At all events, when, as is not unusual, some
lord is the lord of a whole hundred and of its court, the king
will regard him as personally liable for the production of the
whole contingent that is due from that hundred. In this way a
system will be evolved which for many practical purposes will be
indistinguishable from the system of knights' fees, and all this
without any help from the definitely feudal idea that military
service is the return which the tenant makes to the lord for the
gift of land that the lord has made to the tenant.
That this process had already done much of its work when the
old English army received its last summons, we cannot doubt,
though it is very possible that this work had been done
sporadically. We see that the land was being plotted out into
five-hide units. In one passage the Norman clerks call such unit
an honour, an 'honour of five hides'.(35*) There is an old theory
based upon legal texts that such an honour qualifies its lord or
owner to be a thegn. If a ceorl prospers so that he has five
hides 'to the king's útware,' that is, an estate rated as five
hides for military purposes, he is worthy of a thegn's
wergild.(36*) Then the Anglo-Saxon charters show us how the kings
have been endowing their thegns with tracts of territory which
are deemed to contain just five or some multiple of five
hides.(37*) The thegn with five hides will have tenants below
him; but none of them need serve in the host if their lord goes,
as he ought to go, in person. Then each of these territorial
units continues to owe the same quantum of military service,
though the number of persons interested in it be increased or
diminished, and thus the ultimate incidence of the duty becomes
the subject-matter of private arrangements. That is the point of
a story from Lincolnshire, which we have already recounted: -- A
man's land descends to his four sons; they divide it equally and
agree to take turns in doing the military service that is due
from it; but only the eldest of them is to be the king's
man.(38*) Then we see that the great nobles lead or send to the
war all the milites that are due from the lands over which they
have a seignory. There are already wide lands which owe military
service -- we cannot put it otherwise -- to the bishop of
Winchester as lord of Taunton:they owe 'attendance in the host
along with the men of the bishop.'(39*) The churches of Worcester
and Evesham fell out about certain lands at Hamton; one of the
disputed questions was whether or no Hamton ought to do its
military service 'in the bishop's hundred of Oswaldslaw' or
elsewhere.(40*) This question we take to be one of great
importance to the bishop. Lord of the triple hundred of
Oswaldslaw, lord of three hundred hides, he is bound to put sixty
warriors into the field and he is anxious that men who ought to
be helping him to make up this tale shall not be serving in
another contingent.
But from Worcestershire we obtain a still more precious piece
of information. The custom of that county is this: -- When the
king summons the host and his summons is disregarded by one who
is a lord with jurisdiction, 'by one who is so free a man that he
has sake and soke and can go with his land where he pleases,'
then all his lands are in the king's mercy. But if the defaulter
be the man of another lord and the lord sends a substitute in his
stead, then he, the defaulter, must pay forty shillings to his
lord -- to his lord, not to the king, for the king has had the
service that was due; but if the lord does not send a substitute,
then the forty shillings which the defaulter pays to the lord,
the lord must pay to the king.(41*) A feudalist of the straiter
sort might well find fault with this rule. He might object that
the lord ought to forfeit his land, not only if he himself fails
to attend the host, but also if he fails to bring with him his
due tale of milites. Feudalism was not perfected in a day. Still
here we have the root of the matter -- the lord is bound to bring
into the field a certain number of milites, perhaps one man from
every five hides, and if he cannot bring those who are bound to
follow him, he must bring others or pay a fine. His man, on the
other hand, is bound to him and is not bound to the king. That
man by shirking his duty will commit no offence against the king.
The king is ceasing to care about the ultimate incidence of the
military burden, because he relies upon the responsibility of the
magnates. How this system worked in the eastern counties where
the power of the magnates was feebler, we cannot tell. It is not
improbable that one of the forces that is attaching the small
free proprietors to the manors of their lords is this 'five-hide
rule'; they are being compelled to bring their acres into
five-hide units, to club together under the superintendence of a
lord who will answer for them to the king, while as to the
villeins, so seldom have they fought that they are ceasing to be
'fyrd-worthy'.(42*) But in the west we have already what in
substance are knights' fees. The Bishop of Worcester held 300
hides over which he had sake and soke and all customs; he was
bound to put 60 milites into the field; if he failed in this duty
he had to pay 40 shillings for each deficient miles. At the
beginning of Henry II's reign he was charged with 60 knights'
fees.(43*)
We are not doubting that the Conqueror defined the amount of
military service that was to be due to him from each of his
tenants in chief, nor are we suggesting that he paid respect to
the rule about the five hides, but it seems questionable whether
he introduced any very new principle. A new theoretic element may
come to the front, a contractual element: -- the tenant in chief
must bring up his knights because that is the service that was
stipulated for when he received his land. But we cannot say that
even this theory was unfamiliar to the English. The rulers of the
churches had been giving or 'loaning' lands to thegns. In so
doing they had not been dissipating the wealth of the saints
without receiving some 'valuable consideration' for the gift or
the loan (laen); they looked to their thegns for the military
service that their land owed to the king. To this point we must
return in our next essay; but quite apart from definitely feudal
bargains between the king and his magnates, between the magnates
and their dependants, a definition of the duty of military
service which connects it with the ownership of land (and to such
a definition men will come so soon as the well-armed few can
defeat the ill-armed many) will naturally produce a state of
things which will be patient of, even if it will not engender, a
purely feudal explanation. If one of the men to whom the Bishop
of Worcester looks for military service makes a default, the fine
that is due from him will go to the bishop, not to the king. Why
so? One explanation will be that the bishop has over him a sake
and soke of the very highest order, which comprehends even that
fyrd-wíte, that fine for the neglect of military duty, which is
one of the usually reserved pleas of the crown.(44*) Another
explanation will be that this man has broken a contract that he
made with the bishop and therefore owes amends to the bishop: --
to the bishop, not to the king, who was no party to the contract.
Sometimes the one explanation will be the truer, sometimes the
other. Sometimes both will be true enough. As a matter of fact,
we believe that these men of the Bishop of Worcester or their
predecessors in title have solemnly promised to do whatever
service the king demands from the bishop.(45*) Still we can
hardly doubt which of the two explanations is the older, and, if
we attribute to the Norman invaders, as perhaps we may, a
definite apprehension of the theory that knight's service is the
outcome of feudal compacts, this still leaves open the inquiry
whether the past history of military service in Frankland had not
been very like the past history of military service in England.
Already in the days of Charles the Great the duty of fighting the
Emperor's battles was being bound up with the tenure of land by
the operation of a rule very similar to that of which we have
been speaking. The owner of three (at a later time of four)
manses was to serve; men who held but a manse apiece were to
group themselves together to supply soldiers. Then at a later
time the feudal theory of free contract was brought in to explain
an already existing state of things.(46*)
Closely connected with this matter is another thorny topic,
namely, the status of the thegn and the relation of the thegn to
his lord. In the Confessor's day many maneria had been held by
thegns; some of them were still holding their lands when the
survey was made and were still called thegns. The king's thegns
were numerous, but the queen also had thegns, the earls had
thegns, the churches had thegns and we find thegns ascribed to
men who were neither earls nor prelates but themselves were
thegns.(47*) Many of the king's thegns were able to give or sell
the lands that they held, 'to go to whatever lord they
pleased.'(48*) On the other hand, many of the thegns of the
churches held lands which they could not 'withdraw' from the
churches;(49*) in other words 'the thegn-lands' of the church
could not be separated from the church.(50*) The Conqueror
respected the bond that tied them to the church. The Abbot of Ely
complained to him that the foreigners had been abstracting the
lands of St Etheldreda. His answer was that her demesne manors
must at once be given back to her, while as for the men who have
occupied her thegn-lands, they must either make their peace with
the abbot or surrender their holdings.(51*) Thus the abbot seems
to have had the benefit of that forfeiture which his thegns
incurred by espousing the cause of Harold. We see therefore that
the relation between thegn, lord and land varied from case to
case. The land might have proceeded from the lord and be held of
the lord by the thegn as a perpetually inheritable estate, or as
an estate granted to him for life, or granted to him and two
successive heirs;(52*) on the other hand, the lord's hold over
the land might be slight and the bond between thegn and lord
might be a mere commendation which the thegn could at any time
dissolve. Again, the relation between thegn and lord is no longer
conceived as a menial, 'serviential' or ministerial relation. The
Taini Regis are often contrasted with the Servientes Regis.(53*)
The one trait of thegnship which comes out clearly on the face of
our record is that the thegnis a man of war.(54*) But even this
trait is obscured by language which seems to show that there has
been a great redistribution of military service. Though there is
no Latin word that will translate thegn except miles, though
these two terms are never contrasted with each other, and though
there are thegns still existing, still of these two terms one
belongs to the old, the other to the new order of things.(55*)
Thus thegnship is already becoming antiquated and we are left to
guess from older dooms and later Leges what was its essence in
the days of King Edward.
The task is difficult for we can see that this institution
has undergone many changes in the course of a long history and
yet cannot tell how much has remained unchanged. We begin by
thinking of thegnship as a relation between two men. The thegn is
somebody's thegn. The household of the great man, but more
especially the king's household, is the cradle of thegnship. The
king's thegns are his free servants -- servants but also
companions. In peace they have duties to perform a out his court
and about his person; they are his body-guard in war. Then the
king -- and other great lords follow his example -- begins to
give lands to his thegns, and thus the nature of the thegnship is
modified. The thegn no longer lives in his lord's court; he is a
warrior endowed with land. Then the thegnship becomes more than a
relationship, it becomes a status. The thegn is a 'twelve hundred
man'; his wergild and his oath contervail those of six ceorls.
This status seems to be hereditary; the thegn's sons are 'dearer
born' than are the sons of the ceorl.(56*) But we cannot tell how
far this principle is carried. We cannot easily reconcile this
hereditary transmission of thegn-right with the original
principle that thegnship is a relation between two men. We may
have thegns who are nobody's thegns, or else we may have persons
entitled to the thegnly wergild who yet are not thegns. What is
more, since the law which regulates the inheritance of land does
not favour the first-born, we may have poor thegns and landless
thegns. Yet another principle comes into play. A duty of finding
well armed warriors for the host is being territorialized; every
five hides should find a soldier. The thegn from of old has to
attend the host with adequate equipment; the men who under the
new system have to attend the host with horse and heavy armour
are usually thegns. Then the man who has five hides, and who
therefore ought to put a warrior into the field, is a thegn or is
entitled to be a thegn. The ceorl obtains the thegnly wergild if
he has an estate rated for military purposes at five hides.
Another version of this tradition requires of the ceorl who
'thrives to thegn-right' five hides of his own land, a church, a
kitchen, a house in the burh, a special office in the king's
hall. To be 'worthy of thegn-right' may be one thing, to be a
thegn, another. To be a thegn one must be some one's thegn. The
prosperous ceorl will be no thegn until he has put himself under
some lord. But the bond between him and his lord may be
dissoluble at will and may hardly affect his land. It is, we
repeat, very difficult to discover how these various principles
were working together. checking and controlling each other in the
first half of the eleventh century. Several inconsistent elements
seem to be blended. There is the element of hereditary caste: --
the thegn transmits thegnly blood to his offspring. There is the
element of personal relationship: -- he is the thegn of some lord
and owes fealty to that lord. There is the military element: --
he is a warrior who has horse and heavy armour and is bound to
fight the nation's battles. Connected with this last there is the
proprietary element: -- each five hides must send a warrior to
the host; the man with five hides is entitled to become, perhaps
he may be compelled to become a thegn, a warrior.(57*)
On the whole, we gather from Domesday Book that the military
element is subduing the others. The thegn is the man who for one
reason or another is a warrior. For one reason or another, we
say; for the class of thegns is by no means homogeneous. On the
other hand, we see the thegns of the churches, who have been
endowed by the prelates in order that they may do the military
service due from the ecclesiastical lands. Many of the prelates
have thegns, and for the creation of thegn-lands by the churches
it would not be easy to find any explanation save that which we
have already found in the territorialization of military service.
The thegn might pay some annual 'recognition' to the church, he
might send his labourers to help his lord for a day or two at
harvest time; but we may be sure that he was not rack-rented and
that, if military service be left out of account, the church was
a loser by endowing him. Here the land proceeds from the lord to
the thegn; the thegn cannot give or sell it; the holder of that
land can have no lord but the church; if he forfeits the land, he
forfeits it to the church. But, on the other hand, we see
numerous king's thegns who are able 'to go to what lord they
please.' We may see in them landed proprietors who by the play of
'the five-hide rule' have become bound to serve as warriors. We
may be fairly certain that they have not been endowed by the
king, otherwise they would not enjoy the liberty, that marvellous
liberty, of leaving him, of putting themselves under the
protection and the banner of some earl or some prelate. Not that
every thegn will (if we may borrow phrases from a later age)
possess a full 'thegn's fee' or owe the service of a whole
warrior. Large groups of thegns we may see who obviously are
brothers or cousins enjoying in undivided shares the inheritance
of some dead ancestor. They may take it in turns to go to the
war; the king may hold the eldest of them responsible for all the
service; but each of them will be called a thegn, will be
entitled to a thegnly wergild and swear a thegnly oath. Still, on
the whole, the thegn of Domesday Book is a warrior, and he holds
-- though perhaps along with his coparceners -- land that is
bound to supply a warrior.
In the main all thegns seem to have the same legal status,
though they may not be all of equal rank. All of them seem to
have the wergild of twelve hundred shillings. A law of Cnut,
after describing the heriot of the earl, distinguishes two
classes of thegns; there is 'the king's thegn who is nighest to
him' and whose heriot includes four horses and 50 mancuses of
gold, and 'the middle thegn' or 'less thegn' from whom he gets
but one horse and one set of arms or £2.(58*) This law should we
think be read in connexion with the rule that is recorded by
Domesday Book as prevailing in the shires of Derby and
Nottingham: -- the thegn who had fewer than seven manors paid a
relief of 3 marks to the sheriff, while he who had seven and
upwards paid £8 to the king.(59*) A rude line is drawn between
the richer and the poorer thegns of the king. The former deal
immediately with the king and pay their reliefs directly to him;
the latter are under the sheriff and their reliefs are comprised
in his farm. Thus the wealthy thegns, like the barones maiores of
later days, are 'nigher to' the king than are the 'less-thegns'
or those barones minores who in a certain sense are their
successors.
The kings, the earls and the churches have of course many
demesne manors. Of the ecclesiastical estates we shall speak in
our next essay, for they can be best examined in the light that
is cast upon them by the Anglo-Saxon charters. Here we will
merely observe that some of the churches have not only large, but
well compacted territories. The abbey of St Etheldreda, for
example, besides having outlying manors, holds the two hundreds
which make up the isle of Ely; her property in Cambridgeshire is
valued at £318.(60*) The earls also are rich in demesne manors
and so is the king.
King William is much richer than King Edward was. The
Conqueror has been chary in appointing earls and consequently he
has in his hand, not only the royal manors, but also a great many
comital manors, to say nothing of some other estates which, for
one reason or another, he has kept to himself. Edward had been
rich, but when compared with his earls he had not been
extravagantly rich. In Somersetshire, for example, there were
twelve royal manors which may have brought in a revenue of £500
or thereabouts, whIle there were fifteen comital manors which
were worth nearly £300.(61*) The royal demesne had been a
scattered territory; the king had something in most shires, but
was far richer in some than in others. It was not so much in the
number of his manors as in their size and value that he excelled
the richest of his subjects. Somehow or another he had acquired
many of those vills which were to be the smaller boroughs and the
market towns of later days. We may well suppose that from of old
the vills that a king would wish to get and to keep would be the
flourishing vills, but again we can not doubt that many a vill
has prospered because it was the king's.
Among the manors which William holds in the south-west a
dIstinction is drawn by the Exeter Domesday. The manors which the
Confessor held are 'The King's Demesne which belongs to the
kingdom,' while those which were held by the house of Godwin are
the 'Comital Manors.'(62*) So in East Anglia certain manors are
distinguished as pertaining or having pertained to the kingdom or
kingship, the regnum or regio.(63*) This does not seem to have
implied that they were inalienably annexed to the crown, for King
Edward had given some of them away. Neither when it speaks of the
time of William, nor when it speaks of the time of Edward, does
our record draw any clear line between those manors which the
king holds as king and those which he holds in his private
capacity , though it may just hint that certain ancient estates
ought not to be alienated. The degree in which the various manors
of the crown stood outside the national system of finance,
justice and police we cannot accurately ascertain. Some, but by
no means all, pay no geld. Of some it is said that they have
never paid geld. Perhaps in these ingeldable manors we may see
those which constituted the royal demesne of the West Saxon kings
at some remote date. Of the king's vill of Gomshall in Surrey it
is written: 'the villeins of this vill were free from all the
affairs of the sheriff.'(64*) as though it were no general truth
that with a royal manor the sheriff had nothing to do.
As with the estates of the king, so with the estates of the
earls, we find it impossible to distinguish between private
property and official property. Certain manors are regarded as
the 'manors of the shire' (mansiones de comitatu(65*)); certain
vills are 'comital vills.'(66*) they belong to 'the
consulate.'(67*) Hereditary right tempered by outlawry was fast
becoming the title by which the earldoms were holden. The
position of the house of Leofric in Mercia was far from being as
strong as the position of the house of Rolf in Normandy, and yet
we may be sure that King Harold would not have been able to treat
the sons of AElfgar as removable officers. But one of the best
marked features of Domesday Book, a feature displayed on page
after page, the enormous wealth of the house of Godwin, seems
only explicable by the supposition that the earlships and the
older ealdormanships had carried with them a title to the
enjoyment of wide lands. That enormous wealth had been acquired
within a marvellously short time. Godwin was a new man: nothing
certain is known of his ancestry. His daughter's marriage with
the king will account for something; Harold's marriage with the
daughter of AElfgar will account for somethings, for instance,
for manors which Harold held in the middle of AElfgar's
country;(68*) and a great deal of simple rapacity is laid to the
charge of Harold by jurors whose testimony is not to be lightly
rejected;(69*) but the greater part of the land ascribed to
Godwin, his widow and his sons, seems to consist of comitales
villae.
The wealth of the earls is a matter of great importance. If
we subtract the estates of the king, the estates of the earls,
and the estates of the churches -- and, as we shall see
hereafter, the churches had obtained the bulk of their wealth
directly from the kings, -- if we subtract again the lands which
the king, the earls, the churches have granted to their thegns,
the England of 1065 will not appear to us a land of very great
landowners, and we may obtain a valuable hint as to one of the
origins of feudalism. A vast amount of land is or has recently
been held by office-holders, by the holders of the kingship, the
earlships, or the ealdormanships. We seem to see their
proprietary rights arising in the sphere of public law, growing
out of governmental rights, which however themselves are
conceived as being in some sort proprietary . Many a passage in
Domesday Book will suggest to us that a right to take tribute and
a right to take the profits of justice have helped to give the
king and the earls their manors and their seignories. Even in his
own demesne manors the king is apt to appear rather as a tribute
taker than as a landowner. Manors of very unequal size and value
have had to supply him with equal quantities of victuals; each
has to give 'a night's farm' once a year. Then from the counties
at large he has taken a tribute; from Oxfordshire, for example,
£10 for a hawk, 20 shillings for a sumpter horse, £23 for dogs
and 6 sesters of honey;(70*) from Worcestershire £10 or a Norway
hawk, 20 shillings for a sumpter horse;(71*) from Warwickshire
£23 for 'the dog's custom,' 20 shillings for a sumpter horse, £10
for a hawk and 24 sesters of honey.(72*) The farm of the county
that the sheriff pays is made up out of obscure old items of this
sort. Many men who are not the king's tenants must assist him in
his hunting, must help in the erection of his deer-hays.(73*)
Then there are the avera and the inwards that are exacted by the
king or his sheriff from sokemen who are not the king's men. The
sheriff also is entitled to provender rents; out of 'the revenues
which belong to the shrievalty' of Wiltshire, Edward of Salisbury
gets pigs, wheat, barley, oats, honey, poultry, eggs, cheeses,
lambs and fleeces; and besides this he seems to have 'reveland'
which belongs to him as sheriff.(74*) Then we see curious
payments in money and renders in kind made to some royal or some
comital manor by the holders of other manors. In Devonshire,
Charlton which belongs to the Bishop of Coutances, Honiton which
belongs to the Count of Mortain, Smaurige which belongs to Ralph
de Pomerai, Membury which belongs to William Chevre, Roverige
which belongs to St Mary of Rouen, each of these manors used to
pay twenty pence a year to the royal manor of Axminster.(75*) In
Somersetshire there are manors which have owed consuetudines,
masses of iron and sheep and lambs to the royal manors of South
Perrott and Cury, or the comital manors of Crewkerne and
Dulverton.(76*) Then again, we find that pasture rights are
connected with justiciary rights: -- Godwin had a manor in
Hampshire to which belonged the third penny of six hundreds, and
in all the woods of those six hundreds he had free pasture and
pannage;(77*) the third penny of three hundreds in Devonshire and
the third animals of the moorland pastures were annexed to the
manor of Molland.(78*) Many things seems to indicate that the
distinction between private rights and governmental powers has
been but faintly perceived in the past.
If now we look at that English state which is the outcome of
a purely English history, we see that it has already taken a
pyramidal or conical shape. It is a society of lords and men. At
its base are the cultivators of the soil, at its apex is the
king. This cone is as yet but low. Even at the end of William's
reign the peasant seldom had more than two lords between him and
the king, but already in the Confessor's reign he might well have
three.(79*) Also the cone is obtuse: the angle of its apex will
grow acuter under Norman rulers. We can indeed obtain no accurate
statistics, but the number of landholders who were King Edward's
men must have been much larger than the tale of the Norman
tenants in chief. In the geographical distribution of the large
estates under William there is but little more regularity than
there was under his predecessor. In Cheshire and in Shropshire
the Conqueror formed two great fiefs for Hugh of Avranches and
Roger of Montgomery, well compacted fiefs, the like of which
England had not yet seen. But the units which William found in
existence and which he distributed among his followers were for
the more part discrete units, and seldom did the Norman baron
acquire as his honour any wide stretch of continuous territory.
Still a great change took place in the substance of the cone, or,
if that substance is made up of lords and men and acres, then in
the nature of, or rather the relation between, the forces which
held the atoms together. Every change mikes for symmetry
simplicity, consolidation. Some of these changes will seem to us
predestined. To speculate as to what would have happened had
Harold repelled the invader would be vain, and certainly we have
no reason for believing that in that case the formula of
dependent tenure would ever have got hold of every acre of
English land and every right in English land. The law of 'land
loans' (Lehnrecht) would hardly have become our only land law ,
had not a conqueror enjoyed an unbounded power, or a power
bounded only by some reverence for the churches, of deciding by
what men and on what terms every rood of England should be
holden. Had it not been for this, we should surely have had some
franc alleu to oppose to the fief, some Eigen to oppose to the
Lehn. But if England was not to be for ever a prey to rebellions
and civil wars, the power of the lords over their men must have
been -- not indeed increased, but -- territorialized; the liberty
of 'going with one's land to whatever lord one chose' must have
been curtailed. As yet the central force embodied in the kingship
was too feeble to deal directly with every one of its subjects,
to govern them and protect them. The intermediation of the lords
was necessary; the state could not but be pyramidal; and, while
this was so, the freedom that men had of forsaking one lord for
another, of forsaking even the king for the ambitious earl, was a
freedom that was akin to anarchy. Such a liberty must have its
wings clipt; free contract must be taught to know its place; the
lord's hold over the man's land must become permanent. This
change, if it makes at first for a more definite feudalism, or
(to use words more strictly) if it substitutes feudalism for
vassalism, makes also for the stability of the state, for the
increase of the state's power over the individual, and in the end
for the disappearance of feudalism. The freeholder of the
thirteenth century is much more like the subject of a modern
state than was the free man of the Confessor's day who could
place himself and his land under the power and warranty of
whatever lord he chose. Lordship in becoming landlordship begins
to lose its most dangerous element; it is ceasing to be a
religion, it is becoming a 'real' right, a matter for private
law. Again, we may guess, if we please, that but for the Norman
Conquest the mass of the English peasantry would never have
fallen so low as fall it did. The 'sokemen' would hardly have
been turned into 'villeins,' the 'villeins' would hardly have
become 'serfs.' And yet the villeins of the Confessor's time were
in a perilous position. Already they were occupying lands which
for two most important purposes were reckoned the lands of their
lord, land for which their lords gelded, lands for which their
lords fought. Even in an English England the time might have come
when the state, refusing to look behind their lords, would have
left the protection of their rights to a Hofrecht, to 'the custom
of the manor.'
It is, we repeat it, vain to speculate about such matters,
for we know too little of the relative strength of the various
forces that were at work, and an accident, a war, a famine, may
at any moment decide the fate, even the legal fate, of a great
class. And above all there is the unanswerable question whether
Harold or any near successor of his would or could have done what
William did so soon as the survey was accomplished, when he
proved that, after all, the pyramid was no pyramid and that every
particle of it was in immediate contact with him, and 'there came
to him all the land-sitting men who were worth aught from over
all England, whosesoever men they were, and they bowed themselves
to him, and became this man's men.'(80*)
NOTES:
1. D. B. i. 91: 'Ecclesia Romana beati Petri Apostoli tenet de
Rege Peritone.' Ib. 157: 'Ecclesia Sancti Dyonisii Parisii tenet
de Rege Teigtone. Rex Edwardus ei dedit.' Ib. 20 b: 'Abbas de
Grestain tenet de Comite 2 hidas in Bedingham.'
2. Hist. Eng. Law, i. 220.
3. D. B. i. 218 b: 'Rex vero Willelmus sibi postea in elemosina
concessit, unde pro anima Regis et Regine omni ebdomada 2 feria
missam persolvit.' D. B. ii. 133: 'et cantat unaquaque ebdomada
tres missas.'
4. D. B. i. 3: 'reddit unum militem in servitio Archiepiscopi.'
Ib. 10 b; 'servitium unius militis.' Ib. 32: 'servitium unius
militis.' Ib. 151 b: 'inveniebat 2 loricatos in custodiam de
Windesores.'
5. Hist. Eng. Law, i. 268.
6. But D. B. i. 218 b gives us 'tenet in ministerio Regis.'
7. D. B. i. 4 b: 'De terra huius manerii tenet Godefridus in feuo
dimid. solin.' Ib. 36 b: 'Humfridus Camerarius tenet de feuo
Reginae Cumbe.' Ib. 336 b: 'Ipsam [domum] clamat Normannus
Crassus de feuo Regis.'
8. D. B. i. 129 b: 'Postea Willelmus Camerarius tenuit de Regina
in feudo pro 3 lib. per annum de firma, et post mortem Reginae
eodem modo tenuit de Rege.'
9. But, as in general a farmer would have no heritable rights,
holding in fee may be contrasted with holding in farm. D. B. i.
230 b: 'Has terras habet Goduinus de Rege ad firmam, Dislea vero
tenet de Rege in feudo.' So again it may be contrasted with the
husband's rights in his wife's marriage portion. D. B. i. 214 b:
'De ista terra tenet Pirotus 3 hidas de maritagio suae feminae et
unam hidam et terciam partem unius hidae tenet in feudum de
Nigello.'
10. D. B. i. 158: Robert de Ouilly holds forty-two houses in
Oxford, some meadow-land and a mill 'cum beneficio S. Petri,'
i.e. together with the benefice of S. Peter's church. Elsewhere,
i. 273, we read that King William gave a manor to the monks of
Burton 'pro beneficio suo'. , but the meaning of this is bv no
means clear.
11. D. B. i. 144 b: 'Duo.homines tenuerunt de Alwino sed non fuit
alod.' The same phrase occurs on f. 46.
12. D. B. i. 22: 'Aluuard et Algar tenuerunt de Rege pro 2
maneriis in alodia... AElueua tenuit de Rege Edwardo sicut
alodium.' Ib. 26: 'Godwinus Comes tenuit et de eo 7 aloarii.'
13. D. B. i. 60 b: 'Duo alodiarii tenuerunt T. R. E.... Unus
servivit Reginae, alter Bundino.'
14. D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet
relevationem terrae.'
15. D. B. i. 52 b: 'Has hidas tenuerunt 7 alodiarii de Episcopo
nec poterant recedere alio vel ab illo.'
16. D. B. i. 63 b: 'Ibi sunt 5 alodiarii.'
17. See charter of John for St. Augustin's, Canterbury, Rot.
Cart. p. 105: omnes allodiarios quos eis habemus datos.' This
phrase seems to descend through a series of charters from two
charters of the Conqueror in which the 'swa fele þegna swa ic
heom togeleton habbe' of the one appears in the other as 'omnes
allodiarios.' If so, we get from the Conqueror's own chancery the
equation þegn = alodiarius. Hist. Mon. S. August. 349-50.
18. D. B. i. 23: in two successive entries we have 'Offa tenuit
de Episcopo in feudo.... Almar tenuit de Goduino Comite in
alodium.' So again, i. 59: 'Blacheman tenuit de Heraldo Comite in
alodio... Blacheman tenuit in feudo T R. E.' The suggestion has
been made that alodium represents book-land; see Pollock, Land
Laws, ed. 3. p. 27; Eng. Hist. Rev. xi. 227; but we gravely doubt
whether the humbler alodiarii had books. The author of the
Quadripartitus renders bócland by terra hereditaria, terra
testimentalis, terra libera and even by feudum (Edg. ii. 2);
alodium occurs inthe Instituta Cnuti. Afterthiswecanhardly say
for certain that D. B. does not use alodium and feodum as
equivalents, both representing a heritable estate, as absolute an
ownership of land as is conceivable.
19. Hist. Eng. Law, i. 46.
20. D. B. i. 197.
21. D. B. i. 238 b: 'Reliquas autem 7 hidas et dimidiam tenuit
[sic] Britnodus et Aluui T. R. E., sed comitatus nescit de quo
tenuerint.'
22. D. B. i. 23: 'Offa tenuit de episcopo in feudo.' Ib. i. 59 b:
'Blacheman tenuit in feudo T. R. E.'
23. D. B. i. 28 b: 'Bricmar tenuit de Azor et Azor de Heraldo...
Terra est 2 camcis. In dominio est una et 2 villani et 2 bordarii
cum dimidia caruca.'
24. D. B. i. 75 b: 'De eadem terra ten[ent] 3 taini 3 hidas et
reddunt 3 libras excepto servicio.' Ib. 86 b: 'Huic manerio est
addita dimidia hida. Tres taini tenebant T. R. E. et serviebant
preposito manerii per consuetudinem absque omni firma donante.'
25. D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet
relevationem terrae.'
26. D. B. i. 179: 'Burgensis cum caballo serviens, cum
moriebatur, habebat Rex equum et arma eius. De eo qui equum non
habebat, si moreretur, Rex aut 10 solidos aut terram eius cum
domibus.'
27. D. B. i. 50 b: 'Alric tenet dimidiam hidam. Hanc tenuit pater
eius de Rege E. Sed hic Regem non requisivit post mortem Godric
sui avunculi qui eam custodiebat.'
28. D. B. i. 238 b: 'Huic aecclesiae dedit Aluuinus vicecomes
Cliptone concessu Regis Edwardi et filiorum suorum pro anima
sua.' Ib. 59: 'De hoc manerio scira attestatur, quod Edricus eum
tenebat deliberavit illum filio suo qui erat in Abendone
monarchus ut ad firmam illud teneret et sibi donec viveret
necessaria vitae donaret; post mortem vero eius manerium haberet.
Et ideo nesciunt homines de scira quod abbatiae pertineat, neque
enim inde viderunt brevem Regis vel sigillum. Abbas vero testatut
quod in T. R. E. misit ille manerium ad aecclesiam unde erat et
inde brevem et sigillum R. E.'
29. D. B. i. 154: 'Quando Rex ibat in expeditione, burgenses 20
ibant cum eo pro omnibus aliis, vel 20 libras dabant Regi ut
omnes essent liberi.'
30. D. B. i. 230: 'Quando Rex ibat in exercitu per terram, de
ipso burgo 12 burgenses ibant cum eo.'
31. D. B. i. 238: 'Consuetudo Waruuic fuit, ut eunte rege per
terram in expeditionem, decem burgenses de Waruuic pro omnibus
aliis irent.'
32. D. B. i. 57 b.
33. D. B. i. 64 b: 'Quando Rex ibat in expeditione vel terra vel
mari, habebat de hoc burgo aut 20 solidos ad pascendos suos
buzecarlos, aut unum hominem ducebat secum pro honore 5 hidarum.'
34. D. B. i. 100: 'Quando expeditio ibat per terram aut per mare
serviebat haec civitas quantum 5 hidae terrae.'
35. Above, p. 195, note 5.
36. Schmid, App. vii. c. 2. sect. 9-12; App. v; Pseudoleges
Canuti (i.e. Instituta Cnuti) 60, 61 (Schmid, p. 431).
37. Of this we shall speak in another Essay.
38. D. B. i. 375 b; above, p. 182.
39. D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone....
profectio in exercitum cum hominibus episcopi.... Hae duae terrae
non debent exercitum.'
40. See above, p. 116, note 1.
41. D. B. 172: 'Quando Rex in hostem pergit, si quis edictum eius
vocatus remanserit, si ita liber homo est ut habeat socam suam et
sacam et cum terra sua possit ire quo voluerit, de omni terra sua
cst in misericordia Regis. Cuiuscumque vero alterius domini homo
si de hoste remanserit et dominus eius pro eo alium hominem
duxerit, 40 sol. domino Suo qui vocatus fuit emendabit. Quod si
ex toto nullus pro eo abierit, ipse quidem domino suo 40 sol.
dabit, dominus autem eius totidem solidis Regi emendabit.'
42. See above, p. 106, note 3.
43. See Round, Feudal England, 249.
44. D. B. i. 208: 'Testantur homines de comitatu quod Rex
Edwardus dedit Suineshefet Siuuardo Comiti soccam et sacam, et
sic habuit Haroldus comes, praeter quod geldabant in hundredo et
in hostem cum eis abant.' It is here noted that though Harold had
sake and soke over Swineshead, it paid its geld and did its
military duty in the hundred. Our record would hardly mention
such a point unless very often the exaction of geld and military
service was one of the rights and duties of the lord who had sake
and soke.
45. In the next chapter we shall speak of the bishop's
land-loans.
46. See the capitularies of 807 and 808 (ed. Boretius,. pp. 134,
137). Also, Fustel de Coulanges, Les transformations de la
royauté, 515 ff. It may well be doubted whether the five-hide
rule had not been borrowed by English kings from their Frankish
neighbours. Stubbs, Const. Hist. i. 208 ff.
47. D. B. i. 152 b: 'duo teigni homines Alrici filii Goding.' Ib.
'Hoc manerium tenuit Azor filius Toti teignus Regis Edwardi et
alter teignus homo eius tenuit unam hidam et vendere potuit.'
48. D. B. i. 84 b: at the end of a list of royal thegns 'Omnes
qui has terras T. R. E. tenebant, poterant ire ad quem dominum
volebant.'
49. D. B. i. 41: 'Tres taini tenuerunt de episcopo et non
potuerunt ire quolibet.'
50. D. B. i. 91: 'Hae terrae erant tainland in Glastingberie T.
R. E. nec poterant ab aecclesia separari.'
51. Hamilton, Inquisitio, pp. xviii, xix.
52. D. B. i. 66 b: 'De hac eadem terra 3 hidas vendiderat abbas
cuidam taino T. R. E. ad aetatem triutu hominum, et ipse abbas
habebat inde servitum, et postea debet redire ad dominium.' Ib.
i. 83 b: 'Ipsa femina tenet 2 hidas in Tatentone quae erant de
dominio abbatiae de Cernel; T. R. E. duo teini tenebant
prestito.'
53. D. B. i. 64 b: 'Herman et alii servientes Regis... Odo et
alii. taini Regis... Herueus et alii ministri Regis.' Ib. 75 :
'Guddmund et alii taini... Willelmus Belet et alii servientes
Regis.'
54. D. B. i. 56 b (Berkshire custom): 'Tainus vel miles Regis
dominicus moriens, pro relevamento dimittebat Regi omnia arma sua
et equum unum cum sella, alium sine sella.'
55. D. B. i. 83: 'Bricsi tenuit miles Regis E.' Such entries are
rare. D. B. i. 66: 'De eadem terra huius manerii ten[ent] duo
Angli.... Unus ex eis est miles iussu Regis et nepos fuit
Hermanni episcopi.' Here the king compels an Englishman to become
a miles. D. B. i. 180 b: 'Quinque taini... habebant sub se 4
milites.' The warrior was not necessarily of thegnly rank.
56. See the passages collected by Schmid, Gesette, p. 667.
57. In their treatment of the thegnship of the last days before
the Conquest, Maurer lays stress upon the proprietory element.
Schmid upon the hereditary. See Little, and Thegns, H. R. iv.
723.
58. Cnut, ii. 71.
59. D. B. i. 280 b.
60. Hamilton, Inquisitio, 121.
61. Eyton, Somerset, i. 84.
62. D. B. iv. 75 : 'Dominicatus Regis ad Regnum pertinens in
Devenescira.' Ib. 99: 'Mansiones de Comitatu.' Eyton, Somerset,
i. 78.
63. D. B. ii. 119: 'Hoc manerium fuit de regno, sed Rex Edwardus
dedit Radulfo Comiti.' Ib. 144: 'Suafham pertinuit ad regionem et
Rex E. dedit R. Comiti.' Ib. 281 b: 'Terra Regis de Regione quam
Rogerus Bigotus servat.' Ib. 408 b: 'Tornei manerium Regis de
regione.' Mr Round, Feudal England, p. 140, treats regio as a
mere blunder; but it may well stand for kingship.
64. D. B. i. 30 b: 'Huius villae villani ab omni re vicecom[itis]
sunt quieti.'
65. D. B. iv. 99.
66. Pseudoleges Canuti (=Liebermann's Instituta Cnuti), 55
(Schmid, p. 430): 'Comitis rectitudines secundum Anglos istae
sunt communes cum rege: tertius denarius in villis ubi mercatum
convenerit, et in castigatione latronum, et comitales villae,
quae ad comitatum eius pertinent.'
67. D. B. ii. 118 b: 'Terre Regis in Tetford... est una leugata
terre in longa et dim. in lato de qua Rex habet duas partes: de
his autem duabus partibus tercia pars in consulatu iacet.' But
this seems to mean that only this part of the land is in the
county of Norfolk. Ibid. i. 246: in Stafford the king has
twenty-two houses 'de honore comitum.'
68. D. B. i. 246.
69. Ellis, Introduction, i. 313. When twenty years after Harold's
death a question about the title to land is at issue, there seems
no reason why the jurors should tell lies about Harold.
70. D. B. i. 154 b.
71. D B. i. 72.
72. D. B. i. 238.
73. D. B. i. 56 b: Berkshire custom, 'Qui monitus ad
stabilitionem venationis non ibat 50 sol. Regi emendabat.' See
also the Hereford custom, Ib. 179; also Rectitudines (Schmid,
App. III.) c. 1.
74. D. B. i. 69. But the meaning of reveland is obscure. The most
important passages about it are in D. B. i. 57 b (Eseldeborne),
181 (Getune). D. B. i. 83: 'Hanc tenet Aiulf de Rege quamdiu erit
vicecomes.'
75. D. B. i. 100.
76. D. B. i. 86, 86 b, 92, 97; so in Devonshire, 117 b: 'Hoc
manerium debet per consuetudinem in Tavetone manerium Regis aut 1
bovem aut 30 denarios.'
77. D. B. i. 38 b.
78. D. B. i. 101: 'Ipsi manerio pertinet tercius denarius de
hundredis Nortmoltone et Badentone et Brantone et tercium animal
pasturae morarum.'
79. Above, p. 193.
80. Chron. ann. 1085.
9. THE BOROUGHS
Dark as the history of our villages may be, the history of
the boroughs is darker yet; or rather, perhaps, the darkness
seems blacker because we are compelled to suppose that it
conceals from our view changes more rapid and intricate than
those that have happened in the open country. The few paragraphs
that follow will be devoted mainly to the development of one
suggestion which has come to us from foreign books, but which may
throw a little light where every feeble ray is useful. At
completeness we must not aim, and in our first words we ought to
protest that no general theory will tell the story of every or
any particular town.(1*)
In the thirteenth century a legal, though a wavering, line is
drawn between the borough and the mere vill or rural
township.(2*) It is a wavering line, for stress can be laid now
upon one and now upon another attribute of the ancient and
indubitable boroughs, and this selected attribute can then be
employed as a test for the claims of other towns. When in Edward
I's day the sheriffs are being told to bid every borough send two
burgesses to the king's parliaments, there are somewhat more than
150 places to which such summonses will at times be addressed,
though before the end of the middle ages the plumber of
'parliamentary boroughs' will have shrunk to 100 or
thereabouts.(3*) Many towns seem to hover on the border line and
in some cases the sheriff has been able to decide whether or not
a town shall be represented in the councils of the realm. Yet if
we go back to the early years of the tenth century, we shall
still find this contrast between the borough and the mere
township existing as a contrast where legal consequences flow.
Where lies the contrast? What is it that makes a borough to be a
borough? That is the problem that we desire to solve. It is a
legal problem. We are not to ask why some places are thickly
populated or why trade has flowed in this or that channel. We are
to ask why certain vills are severed from other vills and are
called boroughs.
We may reasonably wish, however, since mental pictures must
be painted, to know at the outset whereabouts the line will be
drawn, and whether when we are speaking of the Conqueror's reign
and earlier times we shall have a large or a small number of
boroughs on our hands. Will it be a hundred and fifty, or a
hundred, or will it be only fifty? At once we will say that some
fifty boroughs stand out prominently and will demand our best
attention, though a second and far less important class was
already being formed.
In the middle of the twelfth century the Exchequer was
treating certain places in an exceptional fashion. It was
subjecting them to a special tax in the form of an auxilium or
donum. This fact we may take as the starting point for our
researches. Now if we read the unique Pipe Roll of Henry I's
reign and the earliest Pipe Rolls of Henry II's we observe that
an 'aid' or a 'gift' is from time to time collected from the
'cities and boroughs,' and if we put down the names of the towns
which are charged with this impost, we obtain a remarkable
result.(4*) Speaking broadly we may say that the only towns which
pay are 'county towns.' For a large part of England this is
strictly true. We will follow the order of Domesday Book,
beginning however with its second zone. If London is in
Middlesex,(5*) it is Middlesex's one borough. In Hertfordshire is
Hertford. In Buckinghamshire is Buckingham, but no aid can be
expected from it. In Oxfordshire is Oxford. In Gloucestershire is
Gloucester, but Winchcombe also asserts its burghal rank. In
Worcestershire is Worcester, while Droitwich appears occasionally
with a small gift. Hereford is the one borough of Herefordshire.
Turning to the third zone, we pass rapidly through
Cambridgeshire, Huntingdonshire, Bedfordshire and
Northamptonshire; each has its borough. This will be true of
Leicestershire also; but Leicester is by this time so completely
in the hands of its earl that the king gets nothing from it. Nor,
would it seem, does he get anything from Warwick. Half in
Warwickshire, half in Staffordshire lies Tamworth; Stafford also
pays. At times Bridgenorth appears beside Shrewsbury. Nothing is
received from Chester, for it is the head of a palatinate. Derby,
Nottingham and York are the only representatives of their shires.
Lincolnshire has Stamford on its border as well as Lincoln in its
centre. Norfolk has Thetford as well as Norwich; but Suffolk has
only Ipswich and Essex only Colchester.
In the southern zone matters are not so simple. Kent contains
Canterbury and Rochester; Surrey contains Guildford and
Southwark; Sussex only Chichester. Hampshire has Winchester;
Southampton is receiving special treatment. Wallingford
represents Berkshire. When we get to Wiltshire and Dorset we are
in the classical land of small boroughs. There are various little
towns whose fate is in the balance; Marlborough and Calne seem
for the moment to be the most prominent. In Somersetshire,
whatever may have been true in the past, Ilchester is standing
out as the one borough that pays an aid. Exeter has now no second
in Devonshire. If there is a borough in Cornwall, it makes no
gift to the king.
We may obtain some notion of the relative rank of these towns
if we set forth the amounts with which they are charged in 1130
and in 1156, though the materials for this comparison are
unfortunately incomplete.
Pipe Roll Pipe Roll
31 Hen. I 2 Hen. II
£ £
London 120 120
Winchester 80
Lincoln 60 60
York 40 40
Norwich 30 33 1/3
Exeter 20
Canterbury 20 13 1/3
Colchester 20 12 2/3(6*)
Oxford 20 20
Gloucester 15 15
Wallingford 15
Worcester 15
Cambridge 12 12
Hereford 10
Thetford 10
Northampton 10
Rochester 10
Nottingham | 15 15
Derby |
Wiltshire boroughs 17
Calne 1
Dorset boroughs 15
Huntingdon 8 8
Ipswich 7 3 1/3
Guildford 5 5
Southwark 5 5
Hertford 5
Stamford 5
Bedford 5 6 2/3
Shrewsbury 5
Droitwich 5
Stafford 3 1/3 3 1/3
Winchcombe 3 5
Tamworth 2 3/4 1 1/4(7*)
Ilchester 2 1/2
Chichester(8*)
Now we are not putting this forward as a list of those
English towns that were the most prosperous in the middle of the
twelfth century. We have made no mention of flourishing seaports,
of Dover, Hastings, Bristol, Yarmouth. Nor is this a list of all
the places that are casually called burgi on rolls of Henry II's
reign. That name is given to Scarborough, Knaresborough,
Tickhill, Cirencester and various other towns. New tests of
'burgality' (if we may make that word) are emerging and old tests
are becoming obsolete. We see too that some towns are dropping
out of the list of aid-paying boroughs. In 1130 Wallingford has
thrice failed to pay its aid of £15 and the whole debt of £45
must be forgiven to the burgesses pro paupertate eorum.(9*) So
Wallingford drops out of this list. Probably Buckingham has
dropped out at an earlier time for a similar reason. But still
this list, especially in the form that it takes in Henry I's
time, is of great importance to those who are going to study the
boroughs of Domesday Book. It looks like a traditional list. It
deals out nice round sums. It is endeavouring to keep Wallingford
on a par with Gloucester and above Northampton. It is retaining
Winchcombe.
If we make the experiment, we shall discover that this
catalogue really is a good prologue to Domesday Book. We will
once more visit the counties which form the second zone. The
account that our record gives of Hertfordshire has a preface.
That preface deals with the borough of Hertford and precedes even
the list of the Hertfordshire tenants in chief. Buckingham in
Buckinghamshire and Oxford in Oxfordshire are similarly treated.
In Gloucestershire the city of Gloucester and the borough of
Winchcombe are described before the body of the county is
touched. In Worcestershire, Herefordshire, Cambridgeshire,
Huntingdonshire, Bedfordshire, Northamptonshire, Leicestershire,
Warwickshire, Staffordshire,(10*) Shropshire, Cheshire,
Derbyshire, Nottinghamshire(11*) and Yorkshire the same procedure
is adopted: the account of the shire's city or borough precedes
the account of the shire. In Lincolnshire the description of the
county is introduced by the description of Lincoln and Stamford;
also of Torksey, which had been a place of military importance
and seems to have been closely united with the city of Lincoln by
some governmental bond.(12*) Convenient arrangement is not the
strong point of 'Little Domesday'; but what is said therein of
Colchester is said at the very end of the survey of Essex, while
Norwich, Yarmouth and Thetford stand at the end of the royal
estates in Norfolk, and Ipswich stands at the end of the royal
estates in Suffolk.
If now we enter the southern zone and keep in our minds the
scheme that we have seen prevailing in the greater part of
England, we shall observe that the account of Kent has a prologue
touching Dover, Canterbury and Rochester. In Berkshire an
excellent account of Wallingford precedes the rubric Terra Regis.
Four places in Dorset are singled out for prefatory treatment,
namely, Dorchester, Bridport, Wareham and Shaftesbury. In Devon
Exeter stands, if we may so speak, above the line, and stands
alone, though Barnstaple, Lidford and Totness are reckoned as
boroughs. Of the other counties there is more to be said. If we
compare the first page of the survey of Somerset with the first
pages that are devoted to its two neighbours, Dorset and Devon,
we shall probably come to the conclusion that the compilers of
the book scrupled to put any Somerset vill on a par with Exeter,
Dorchester, Bridport, Wareham and Shaftesbury. In each of the
three cases the page is mapped out in precisely the same fashion.
The second column is headed by Terra Regis. A long way down in
the first column begins the list of tenants in chief. The upper
part of the first column contains in one case the account of
Exeter, in another the account of the four Dorset boroughs, but
in the third case, that of Somerset, it is left blank. In
Wiltshire, Malmesbury and Marlborough stand above the line; but,
if we look to the foot of the page, we shall suspect that the
compilers can not easily force their general scheme upon this
part of the country. In Surrey, no place stands above the line.
Guildford is the first place mentioned in the Terra Regis;
Southwark seems to be inadequately treated on a later page. The
case of Sussex is like that of Somerset; the list of the tenants
in chief is preceded by a blank space. In Hampshire a whole
column is left blank. On a later page the borough of Southampton
has a column to itself; in the next column stands the Terra Regis
of the Isle of Wight. And now let us turn back to the Middlesex
that we have as yet ignored. Nearly two columns, to say nothing
of some precedent pages are void.(13*)
Now we must not be led away into speculations which would be
vain. We must not, for example, inquire whether the information
that had been obtained touching London and Winchester was too
bulky to fill a room that had been left for it. We must not
inquire whether something was to be said of Chichester or
Hastings, of Ilchester or of Bristol, that has not been said. But
apparently we may attribute to King William's officials a certain
general idea. It is an idea which suits the greater part of
England very well, though they find difficulties in their way
when they endeavour to impose it on some of the counties that lie
south of the Thames. The broad fact stands clear that throughout
the larger part of England the commissioners found a town in each
county, and in general one town only, which required special
treatment. They do not locate it on the Terra Regis; they do not
locate it on any man's lands. It stands outside the general
system of land tenure.
For a while, then, let us confine our attention to these
county towns, and we shall soon see why it is that they are
rarely brought under any rubric which would describe them as
pieces of the king's soil or pieces of some one else's soil. The
trait to which we allude we shall call (for want of a better
term) the tenurial heterogeneity of the burgesses. In those
boroughs that are fully described we seldom, if ever, find that
all the burgesses have the same landlord. Of course there is a
sense in which, according to the view of the Domesday surveyors
and of all later lawyers, every inch of borough land is held of
one landlord, namely, the king; but in that sense every inch of
England has the same landlord. The fact that we would bring into
relief is this, that normally the burgesses of the borough do not
hold their burgages immediately of one and the same lord; they
are not 'peers of a tenure'; the group that they constitute is
not a tenurial group. Far rather we shall find that, though there
will be some burgesses holding immediately of the king, there
will be others whose titles can be traced to the king only
through the medium of other lords. And the mesne lord will often
be a very great man, some prelate or baron with a widespread
honour. Within the borough he will, to use the language of
Domesday Book, 'have' or 'hold' a small group of burgesses, and
sometimes they will be reckoned as annexed to or as 'lying in'
some manor distant from the town. It seems generally expected
that the barons of the county should have a few burgages apiece
in the county town. This arrangement does not look new. Seemingly
the great men of an earlier day, the antecessores of the
Frenchmen, have owned town-houses: not so much houses for their
own use, as houses or 'haws' (hagae) in which they could keep a
few 'burgesses.'
Some examples of this remarkable arrangement should be given.
First we will look at Oxford. The king has many houses; the
Archbishop of Canterbury has 7; the Bishop of Winchester 9; the
Bishop of Bayeux 18; the Bishop of Lincoln 30; the Bishop of
Coutances 2; the Bishop of Hereford 3 ; the Abbot of St.
Edmunds's 1; the Abbot of Abingdon 14; the Abbot of Eynsham 13.
And so with the worldly great:the Count of Mortain has 10; Count
Hugh has 7; the Count of Evreux 1; Robert of Ouilly 12; Roger of
Ivry 15; Walter Giffard 17: -- but we need not repeat the whole
long list.(1*)
It is so at Wallingford; King Edward had 8 virgates on which
were 276 houses, and they paid him £11 rent; Bishop Walkelin of
Winchester has 27, which pay 25 shillings; the Abbot of Abingdon
has two acres, on which are 7 houses paying 4 shillings; Milo
Crispin has 20 houses, which pay 12 shillings and 10 pence; and
so forth.(15*) Further, it is said that the Bishop's 27 houses
are valued in Brightwell; and, turning to the account of
Brightwell, there, sure enough, we find mention of the 25
shillings which these houses pay.(16*) Milo's 20 houses are said
to 'lie in' Newnham; he has also in Wallingford 6 houses which
are in Hazeley, 1 which is in Stoke, 1 which is in Chalgrove, one
acre with 6 houses which is in Sutton, one acre with 11 houses
which is in Bray; 'all this land' we are told 'belongs to
Oxfordshire, but nevertheless it is in Wallingford.' Yes, Milo's
manor of Chalgrove lies five, his manor of Hazeley lies seven,
miles from Wallingford; nevertheless, houses which are physically
in Wallingford are constructively in Chalgrove and Hazeley. That
we are not dealing with a Norman novelty is in this case
extremely plain. Wallingford is a border town. We read first of
the Berkshire landowners who have burgesses within it. There
follows a list of the Oxfordshire 'thegns' who hold houses in
Wallingford. Archbishop Lanfranc and Count Hugh appear in this
context as 'thegns' of Oxfordshire.
When we have obtained this clue, we soon begin to see that
what is true of Oxford and Wallingford is true even of those
towns of which no substantive description is given us. Thus there
are 'haws' or town-houses in Winchester which are attached to
manors in all corners of Hampshire, at Wallop, Clatford,
Basingstoke, Eversley, Candover, Strathfield, Minstead and
elsewhere. Some of the manors to which the burghers of London
were attached are not, even in our own day, within our monstrous
town; there are some at Banstead and Bletchingley in Surrey, at
Waltham and Thurrock in Essex. But in every quarter we see this
curious scheme. At Warwick the king has in his demesne 113
houses, and his barons have 112.(17*) Of the barons' houses it is
written: 'These houses belong to the lands which the barons hold
outside the borough and are valued there.' Or turn we to a small
town: -- at Buckingham the barons have 26 burgesses; no one of
them has more than 5.(18*) The page that tells us this presents
to us an admirable contrast between Buckingham and its future
rival. Aylesbury is just an ordinary royal manor and stands under
the rubric Terra Regis. Buckingham is a very petty townlet; but
it is a borough, and Count Hugh and the Bishop of Coutances,
Robert of Ouilly, Roger of Ivry, Arnulf of Hesdin and other
mighty men have burgesses there. As a climax we may mention the
case of Winchcombe. The burgages in this little town were held by
many great people. About the year 1100 the king had 60; the Abbot
of Winchcombe 40; the Abbot of Evesham 2; the Bishop of Hereford
2; Robert of Bellême 3 ; Robert Fitzhamon 5, and divers other
persons of note had some 29 houses among them.(19*) However poor,
however small, Winchcombe may have been, it radically differed
from the common manor and the common village.
We have seen above how in the Conqueror's day the Abbey of
Westminster had a manor at Staines(20*) and how that manor
included 48 burgesses who paid 40s. a year. Were those burgesses
really in Staines, and was Staines a borough? No, they were in
the city of London. The Confessor had told his Middlesex thegns
how he willed that St Peter and the brethren at Westminster
should have the manor (cotlif) of Staines with the land called
Staninghaw (mid dam lande Staeningehaga) within London and all
other things that had belonged to Staines.(21*) Is not the guess
permissible that Staining Lane in the City of London,(22*)
wherein stood the church of St Mary, Staining, was so called, not
'because stainers lived in it' but because it once contained the
haws of the men of Staines? We must be careful before we find
boroughs in Domesday Book, for its language is deceptive. Perhaps
we may believe that really and physically there were forty-six
burgesses in the vill of St Albans;(23*) but, after what we have
read of Staines, can we be quite sure that these burgesses were
not in London? The burgesses who de iure 'are in' one place are
often de facto in quite another place.
We may for a moment pass over two centuries and turn to the
detailed account of Cambridge given to us by the Hundred Rolls,
the most elaborate description that we have of any medieval
borough. Now in one sense the 'vill' or borough of Cambridge
belongs to the king, and, under him, to the burgesses, for they
hold it of him in capite at a fee-farm rent. But this does not
mean that each burgess hold his tenement of the corporation or
communitas of burgesses, which in its turn holds every yard of
land of the king in chief. It does not even mean that each
burgess holds immediately of the king, the communitas intervening
as farmer of the king's rents.(24*) No, the titles of the various
burgesses go up to the king by many various routes. Some of them
pay rents to the officers of the borough who are the king's
farmers; but many of them do not. The Chancellor and Masters of
the University, for example, hold three messuages in the vill of
Cambridge; 'but,' say the sworn burgesses, 'what they pay for the
same, we do not know and cannot discover.'(25*) How could it be
otherwise? Domesday Book shows us that the Count of Britanny had
ten burgesses in Cambridge.(26*) Count Alan's houses will never
be held in chief of the crown by any burgess: they will form part
of the honour of Richmond to the end of time. We may take another
example which will show the permanence of proprietary
arrangements in the boroughs. From an account of Gloucester which
comes to us from the year 1100 or thereabouts we learn that there
were 300 houses in the king's demesne and 313 belonging to other
lords. From the year 1455 we have another account which tells of
310 tenements paying landgavel to the king's farmers and 346
which pay them nothing.(27*)
Perhaps no further examples are needed. But this tenurial
heterogeneity seems to be an attribute of all or nearly all the
very ancient boroughs, the county towns. In some cases the king
was the landlord of far the greater number of the burgesses. In
other cases the bishop became in course of time the lord of some
large quarter of a town in which his cathedral stood. At
Canterbury and Rochester, at Winchester and Worcester, this
process had been at work from remote days; the bishops had been
acquiring land and 'haws' within the walls.(28*) But we can see
that in Henry I's day there were still four earls who were
keeping up their interest in their burgesses at Winchester.(29*)
In the later middle ages we may, if we will, call these places
royal boroughs and the king's 'demesne boroughs,' for the
burgesses derive their 'liberties' directly from the king. But we
must keep these ancient boroughs well apart from any royal manors
which the king has newly raised to burghal rank. In the latter he
will be the immediate landlord of every burgess; in the former a
good deal of rent will be paid, not to him, nor to the community
as his farmers, but to those who are filling the shoes of the
thegns of the shire.
This said, we will turn back our thoughts to the oldest days.
The word that deserves our best attention is burh, the future
borough, for little good would come of an attempt to found a
theory upon the Latin words, such as civitas, oppidum and urbs
which occur in some of those magniloquent land-books.(30*) Now it
seems fairly clear that for some long time after the Germanic
invasions the word burh meant merely a fastness, a stronghold,
and suggested no thick population nor any population at all. This
we might learn from the map of England. The hill-top that has
been fortified as a burh. Very often it has given its name to a
neighbouring village.(31*) But, to say nothing of hamlets, we
have full two hundred and fifty parishes whose names end in
burgh, borough or bury, and in many cases we see no sign in them
of an ancient camp or of an exceptionally dense population. It
seems a mere chance that they are not tons or hams, worths or
thorpes. Then again, in Essex and neighbouring shires it is
common to find that in the village called X there is a squire's
mansion or a cluster of houses called X-bury. Further, we can see
plainly from our oldest laws that the palisade or entrenchment
around a great man's house is a burh. Thus Alfred: The king's
burh-bryce (the sum to be paid for breaking his burh) is 120
shillings, an archbishop's 90 shillings, another bishop's 60
shillings, a twelve-hundred man's 30 shillings, a
six-hundred-man's 15 shillings, a ceorl's edor-bryce (the sum to
be paid for breaking his hedge) 5 shillings.(32*) The ceorl,
whose wer is 200 shillings, will not have a burh, he will only
have a hedge round his house; but the man whose wer is 600
shillings will probably have some stockade, some rude rampart; he
will have a burh.
We observe the heavy bót of 120 shillings which protects the
king's burh. May we not see here the very first stage in the
legal history of our boroughs? We pass over some centuries and we
read in a statement of the Londoners' customs that a man who is
guilty of unlawful violence must pay the king's burh-bryce of
five pounds.(33*) And then the Domesday surveyors tell us how at
Canterbury every crime committed in those streets which run right
through the city is a crime against the king, and so it is if
committed upon the high-roads outside the city for the space of
one league, three perches and three feet.(34*) This curious
accuracy over perches and feet sends us to another ancient
document: -- 'Thus far shall the king's peace (grid) extend from
his burh-geat where he is sitting towards all four quarters,
namely, three miles, three furlongs, three acre-breadths, nine
feet, nine hand-breadths, nine barleycorns.'(35*) And then we
remember how Fleta tells us that the verge of the king's palace
is twelve leagues in circumference, and how within that ambit the
palace court, the king's most private court, has
jurisdiction.(36*)
Has not legal fiction been at work since an early time? Has
not the sanctity of the king's house extended itself over a group
of houses? The term burh seems to spread outwards from the
defensible house of the king and with it the sphere of his
burh-bryce is amplified. Within the borough there reigns a
special peace. This has a double meaning: -- not only do acts
which would be illegal anywhere become more illegal when they are
done within the borough, but acts which would be legal elsewhere
are illegal there. King Edmund legislating against the blood-feud
makes his burh as sacred as a church; it is a sanctuary where the
feud may not be prosecuted.(37*) If in construing such a passage
we doubt how to translate burh, whether by house or by borough,
we are admitting that the language of the law does not
distinguish between the two. The Englishman's house is his
castle, or, to use an older term, his burh; the king's borough is
the king's house, for his house-peace prevails in its
streets.(38*)
Our oldest laws seem to know no burh other than the strong
house of a great (but he need not be a very great) man. Early in
the tenth century, however, the word had already acquired a new
meaning. In AEthelstan's day it seems to be supposed by the
legislator that a moot will usually be held in a burh. If a man
neglects three summonses to a moot, the oldest men of the burh
are to ride to his place and seize his goods.(39*) Already a burh
will have many men in it. Some of them will be elder-men,
aldermen. A moot will be held in it. Very possibly this will be
the shire-moot, for, since there is riding to be done, we see
that the person who ought to have come to the moot may live at a
distance.(40*) A little later the burh certainly has a moot of
its own. Edgar bids his subjects seek the burh-gemót as well as
the scyr-gemót and the hundred-gemót. The borough-moot is to be
held thrice a year.(41*) At least from this time forward, the
borough has a court. An important line is thus drawn between the
borough and the mere tún. The borough has a court; the village
has none, or, if the villages are getting courts, this is due to
the action of lords who have sake and soke and is not commanded
by national law. National law commands that there shall be a moot
thrice a year in every burh.
The extension of the term burh from a fortified house to a
fortified group of houses must be explained by those who are
skilled in the history of military affairs. It is for them to
tell us, for example, how much use the Angles and Saxons in the
oldest days made of the entrenched hill-tops, and whether the
walls of the Roman towns were continuously repaired.(42*)
Howbeit, a time seems to have come, at latest in the struggle
between the Danish invaders and the West-Saxon kings, when the
establishment and maintenance of what we might call fortified
towns was seen to be a matter of importance. There was to be a
cluster of inhabited dwellings which as a whole was to be made
defensible by ditch and mound, by palisade or wall. Edward the
Elder and the Lady of the Mercians were active in this work.
Within the course of a few years burgs were 'wrought' or
'timbered' at Worcester, Chester, Hertford, Witham in Essex,
Bridgnorth, Tamworth, Stafford, Warwick, Eddisbury, Warbury,
Runcorn, Buckingham, Towcester, Maldon, Huntingdon.(43*) Whatever
may be meant by the duty of repairing burgs when it is mentioned
in charters coming from a somewhat earlier time, it must for the
future be that of upholding those walls and mounds that the king
and the lady are rearing. The land was to be burdened with the
maintenance of strongholds. The land, we say. That is the style
of the land-books. Land, even though given to a church, is not to
be free (unless by exceptional favour) of army-service,
bridge-work and borough-bettering or borough-fastening.
Wallwork(44*) is coupled with bridge-work; to the duty of
maintaining the county bridges is joined the duty of constructing
and repairing the boroughs. Shall we say the 'county boroughs'?
Let us ask ourselves how the burden that is known as
burh-bót, the duty that the Latin charters call constructio,
munitio, restauratio, defensio, arcis (for arx is the common
term) will really be borne. Is it not highly probable, almost
certain, that each particular tract of land will be ascript to
some particular arx or castellum,(45*) and if, for instance,
there is but one burh in a shire, all the lands in that shire
must help to better that burh. Apportionment will very likely go
further. The man with five hides will know how much of the mound
or the wall he must maintain, how much 'wall-work' he must do. We
see how the old bridge-work becomes a burden on the estates of
the county landowners. From century to century the Cambridgeshire
landowners contribute according to their hidage to repair the
most important bridge of their county, a bridge which lies in the
middle of the borough of Cambridge. Newer arrangements, the rise
of castles and of borough communities, have relieved them from
the duty of 'borough-fastening;' but the bridge-work is
apportioned on their lands.
The exceedingly neat and artificial scheme of political
geogrAphy that we find in the midlands, in the country of the
true 'shires,' forcibly suggests deliberate delimitation for
military purposes. Each shire is to have its borough in its
middle. Each shire takes it name from its borough. We must leave
it for others to say in every particular case whether and in what
sense the shire is older than the borough or the borough than the
shire: whether an old Roman chester was taken as a centre or
whether the struggles between Germanic tribes had fixed a
circumference. But a policy, a plan, there has been, and the
outcome of it is that the shire maintains the borough.(46*)
There has come down to us in a sadly degenerate form a
document which we shall hereafter call 'The Burghal Hidage.'(47*)
It sets forth, so we believe, certain arrangements made early in
the tenth century for the defence of Wessex against Danish
inroads. It names divers strongholds, and assigns to each a large
number of hides. A few of the places that it mentions we have not
yet found on the map. Beginning in the east of Sussex and
following the order of the list, we seem to see Hastings, Lewes,
Burpham (near Arundel), Chichester, Porchester, Southampton,
Winchester, Wilton, Tisbury (or perhaps Chisenbury), Shaftesbury,
Twyneham, Wareham, Bredy, Exeter, Halwell near Totness, Lidford,
Barnstaple, Watchet, Axbridge; then Langport and Lyng (which
defend the isle of Athelney), Bath, Malmesbury, Cricklade,
Oxford, Wallingford, Buckingham, Eastling near Guildford, and
Southwark. Corrupt and enigmatical though this catalogue may be,
it is of the highest importance. It shows how in the great age of
burg-building the strongholds had wide provinces which in some
manner or another were appurtenant to them, and it may also give
us some previous hints about places in Wessex which once were
national burgs but which forfeited their burghal character in the
tenth century. Guildford seems to have risen at the expense of
Eastling and Totness at the expense of Halwell, while Tisbury,
Bredy and Watchet (if we are right in fancying that they are
mentioned) soon lost caste. Lyng is not a place which we should
have named among the oldest of England's burgs, and yet we have
all read how Alfred wrought a 'work' at Athelney. In Wessex burgs
rise and fall somewhat rapidly. North of the Thames the system is
more stable. Also it is more artificial, for north of the Thames
civil and military geography coincide.
Let us now look once more at the Oxford of Domesday Book. The
king has twenty 'mural houses'(48*) which belonged to Earl
AElfgar; they pay 13s. 2d. He has a house of 6d. which is
constructively at Shipton; one of 4d. at Bloxham; one of 30d. at
Risborough and two of 4d. at Twyford in Buckinghamshire. 'They
are called mural houses because, if there be need and the king
gives order, they shall repair the wall.' There follows a list of
the noble houseowners, an archbishop, six bishops, three earls
and so forth. 'All the above hold these houses free because of
the reparation of the wall. All the houses that are called
"mural" were in King Edward's time free of every thing except
army service and wall-work.' Then of Chester we read this:(49*)
-- 'To repair the wall and the bridge, the reeve called out one
man from every hide in the county, and the lord whose man did not
come paid 40s. to the king and earl.' The duty of maintaining the
bulwark of the county's borough is incumbent on the magnates of
the county. They discharge it by keeping haws in the borough and
burgesses in those haws.(50*)
We may doubt whether the duty of the county to its borough
has gone no further than mere 'wall-work.' A tale from the older
Saxony may come in well at this point. When the German king Henry
the Fowler was building burgs in Saxony and was playing the part
that had lately been played in England by Edward and AEthelflaed,
he chose, we are told, the ninth man from among the agrarii
milites; these chosen men were to live in the burgs; they were to
build dwellings there for their fellows (confamiliares) who were
to remain in the country tilling the soil and carrying a third of
the produce to the burgs, and in these burgs all concilia and
conventus und convivia were to be held.(51*) Modern historians
have found in this story some difficulties which need not be
noticed here. Only the core of it interests us. Certain men are
clubbed together into groups of nine for the purpose of
maintaining the burg as a garrisoned and victualled stronghold in
which all will find room in case a hostile inroad be made.
Turning to England we shall not forget how in the year 894
Alfred divided his forces into two halves; half were to take the
field, half to remain at home, besides the men who were to hold
the burgs;(52*) but at all events we shall hardly go astray if we
suggest that the thegns of the shire have been bound to keep
houses and retainers in the borough of their shire and that this
duty has been apportioned among the great estates.(53*) We find
that the baron of Domesday Book has a few burgesses in the
borough and that these few burgesses 'belong' in some sense or
another to his various rural manors. Why should he keep a few
burgesses in the borough and in what sense can these men belong
some to this manor and some to that? To all appearance this
arrangement is not modern. King Edmund conveyed to his thegn
AEthelweard an estate of seven hides at Tistead in Hampshire and
therewith the haws within the burg of Winchester that belonged to
those seven hides.(54*) When the Bishop of Worcester loaned out
lands to his thegns, the lands carried with them haws in the
'port' of Worcester.(55*) We have all read of the ceorl who
'throve to. thegn-right., He had five hides of his own land, a
church and a kitchen, a bell-tower and a burh-geat-setl, which,
to our thinking, is just a house in the 'gate,' the street of the
burh.(56*) He did not acquire a town-house in order that he might
enjoy the pleasures of the town. He acquired it because, if he
was to be one of the great men of the county, he was bound to
keep in the county's burh retainers who would do the wallwork and
hoard provisions sent in to meet the evil day when all men would
wish to be behind the walls of a burh.
We have it in our modern heads that the medieval borough is a
sanctuary of peace, an oasis of 'industrialism' in the wilderness
of 'militancy.' Now a sanctuary of peace the borough is from the
very first. An exceptional and exalted peace reigns over it. If
you break that peace you incur the king's burh-bryce. But we may
strongly suspect that the first burgmen, the first burgenses,
were not an exceptionally peaceful folk. Those burhwaras of
London who thrashed Swegen(57*) and chose kings were no sleek
traders; nor must we speak contemptuously of 'trained bands of
apprentices' or of 'the civic militia.' In all probability these
burg-men were of all men in the realm the most professionally
warlike. Were we to say that in the boroughs the knightly element
was strong we might mislead, for the word knight has had
chivalrous adventures. However, we may believe that the burgensis
of the tenth century very often was a cniht, a great man's cniht,
and that if not exactly a professional soldier (professional
militancy was but beginning) he was kept in the borough for a
military purpose and was perhaps being fed by the manor to which
he belonged. These knights formed gilds for religious and
convivial purposes. At Cambridge there was a gild of thegns, who
were united in blood-brotherhood. We cannot be certain that all
these thegns habitually lived in Cambridge. Perhaps we should
rather say that already a Cambridgeshire club had its
head-quarters in Cambridge and there held its 'morning-speeches'
and its drinking bouts. These thegns had 'knights' who seem to
have been in some sort inferior members of the gild and to have
been bound by its rules.(58*) Then we hear of 'knight-gilds' at
London and Canterbury and Winchester.(59*) Such gilds would be
models for the merchant-gilds of after-days, and indeed when not
long after the Conquest we catch at Canterbury our first glimpse
of a merchant-gild, its members are calling themselves knights:
knights of the chapman-gild.(60*) Among the knights who dwelt in
the burg such voluntary societies were the more needful, because
these men had not grown up together as members of a community.
They came from different districts and had different lords. In
this heterogeneity we may also see one reason why a very
stringent peace, the king's own house-peace, should be
maintained, and why the borough should have a moot of its own.
When compared with a village there is something artificial about
the borough.
This artificiality exercised an influence over the later fate
of the boroughs. The ground had been cleared for the growth of a
new kind of community, one whose members were not bound together
by feudal, proprietary, agricultural ties. But the strand that we
have been endeavouring to trace is broken at the Conquest. The
castle arises. It is garrisoned by knights who are more heavily
armed and more professionally militant than were their
predecessors. The castle is now what wants defending; the knights
who defend it form no part of the burghal community, and perhaps
'the castle fee' is in law no part of the borough. And yet let us
see how in the twelfth century the king's castle at Norwich was
manned. It was manned by the knights of the Abbot of St Edmund's.
One troop served there for three months and then was relieved by
another, and those who were thus set free went home to the manors
with which the abbot had enfeoffed them and which they held by
the service of castle-guard.(61*) Much in this arrangement is
new; the castle itself is new; but it is no new thing, we take
it, that the burh should be garrisoned by the knights of abbots
or earls. And who built the castles, who built the Tower of
London? Let us read what the chronicler says of the year 1097: --
Also many shires which belonged to London for work(62*) were
sorely harassed by the wall that they wrought around the tower,
and by the bridge, which had been nearly washed away, and by the
work of the king's hall that was wrought at Westminster. There
were shires or districts which of old owed this work or work of
this kind to London-bury.(63*)
Long before the Conquest, however, a force had begun to play
which was to give to the boroughs their most permanent
characteristic. They were to be centres of trade. We must not
exclude the hypothesis that some places were fortified and
converted into burgs because they were already the focuses of
such commerce as there was. But the general logic of the process
we take to have been this: -- The king's burh enjoys a special
peace: Even the men who are going to or coming from it are under
royal protection: Therefore within its walls men can meet
together to buy and sell in safety: Also laws which are directed
against theft command that men shall not buy and sell elsewhere:
Thus a market is established: Traders begin to build booths round
the market-place and to live in the borough. A theory has indeed
been brilliantly urged which would find the legal germ of the
borough rather in a marketpeace than in the peace of a burg.(64*)
But this doctrine has difficulties to meet. A market-peace is
essentially temporary, while the borough's peace is eternal. A
market court, if it arises, will have a jurisdiction only over
bargains made and offences committed on market-days, whereas the
borough court has a general competence and hears pleas relating
to the property in houses and lands. Here in England during the
Angevin time the 'franchise,' or royally granted right, of
holding a market is quite distinct from the legal essence of the
borough. Lawful markets are held in many places that are not
boroughs; indeed in the end by calling a place 'a mere
market-town' we should imply that it was no borough. Already in
Domesday Book this seems to be the case. Markets are being held
and market-tolls are being taken in many vills which are not of
burghal rank.(65*) Perhaps also we may see the boroughpeace and
the market-peace lying side by side. In the Wallingford of the
Confessor's day there were many persons who had sake and soke
within their houses. If anyone spilt blood and escaped into one
of those houses before he was attached, the owner received the
blood-wite. But it was not so on Saturdays, for then the money
went to the king 'because of the market.'(66*) Thus the king's
borough-peace seems to be intensified on market-days; on those
days it will even penetrate the houses of the immunists. So at
Dover some unwonted peace or 'truce' prevailed in the town from
St Michael's Day to St Andrew's: that is to say, during the
herring season.(67*)
The establishment of a market is not one of those indefinite
phenomena which the historian of law must make over to the
historian of economic processes. It is a definite and a legal
act. The market is established by law. It is established by law
which prohibits men from buying and selling elsewhere than in a
duly constituted market. To prevent an easy disposal of stolen
goods is the aim of this prohibition. Our legislators are always
thinking of the cattle-lifter. At times they seem to go the full
length of decreeing that only in a 'port' may anything be bought
or sold, unless it be of trifling value; but other dooms would
also sanction a purchase concluded before the hundred court. He
who buys elsewhere runs a risk of being treated as a thief if he
happens to buy stolen goods.(68*) Official witnesses are to be
appointed for this purpose in every hundred and in every burh:
twelve in every hundred and small burh, thirty-three in a large
burh.(69*) Here once more we see the burh co-ordinated with the
hundred. A by-motive favours this establishment of markets. Those
who traffic in the safety of the king's burh may fairly be asked
to pay some toll to the king. They enjoy his peace; perhaps also
the use of royal weights and measures, known and trustworthy, is
another part of the valuable consideration that they receive.
First and last throughout the history of the boroughs toll is a
matter of importance.(70*) It gives the king a revenue from the
borough, a revenue that he can let to farm. Also, though we do
not think that the borough court was in its origin a mere market
court, the disputes of the market-place will provide the borough
court with plentiful litigation, and in this quarter also the
king will find a new source of income. Among the old land-books
that which speaks most expressly of the profits of jurisdiction
as the subject-matter of a gift is a charter which concerns the
town of Worcester. AEthelred and AEthelflaed, the ealdorman and
lady of the Mercians, have, at the request of the bishop, built a
burh at Worcester, and they declare that of all the rights that
appertain to their lordship both in market (on ceapstowe) and in
street, within the burh and without, they have given half to God
and St Peter, with the witness of King Alfred and all the wise of
Mercia. The lord of the church is to have half of all, be it
land-fee, or fiht-wite, stealing, wohceapung (fines for buying or
selling contrary to the rules of the market) or
borough-wall-scotting.(71*) Quite apart from the rent of houses,
there is a revenue to be gained from the borough.
Another rule has helped to define the borough, and this rule
also has its root among the regalia. No one, says King
AEthelstan, is to coin money except in a port; in Canterbury
there may be seven moneyers, four of the king, two of the bishop,
one of the abbot; in London-borough eight; in Winchester six; in
Lewes two; in Hastings one; in Chichester one; in Hampton two; in
Wareham two; in Exeter two; in Shaftesbury two, and in each of
the other boroughs one.(72*) Already, then, a burh is an entity
known to the law: every burh is to have its moneyer.
We have thus to consider the burh (1) as a stronghold, a
place of refuge, a military centre: (2) as a place which has a
moot that is a unit in the general, national system of moots: (3)
as a place in which a market is held. When in the laws this third
feature is to be made prominent, the burh is spoken of as a port,
and perhaps from the first there might be a port which was not a
burh.(73*) The word port was applied to inland towns. To this
usage of it the portmoot or portmanmoot that in after days we may
find in boroughs far from the coast bears abiding testimony. On
the other hand, except on the seaside, this word has not become a
part of many English place names.(74*) If, as seems probable, it
is the Latin portus, we apparently learn from the use made of it
that at one time the havens (and some of those havens may not
have been in England) were the only known spots where there was
much buying and selling. But be it remembered that a
market-place, a ceap-stow, does not imply a resident population
of buyers and sellers; it does not imply the existence of
retailers.(75*)
We cannot analyse the borough population; we cannot weigh the
commercial element implied by port or the military element
implied by burh; but to all seeming the former had been rapidly
getting the upper hand during the century which preceded the
making of Domesday Book. If we are on the right track, there was
a time when the thegns of the shire must have regarded their
borough haws rather as a burden than as a source of revenue. They
kept those haws because they were bound to keep them. On the
other hand, the barons of the Conqueror's day are deriving some
income from these houses. Often it is very small. Count Hugh, for
example, has just one burgess at Buckingham who pays him
twenty-six pence a year.(76*) All too soon, it may be, had the
boroughs put off their militancy. Had they retained it, England
might never have been conquered. Houses which should have been
occupied by 'knights' were occupied by chapmen.
But this is not the whole difficulty. Even if we could
closely watch the change which substitutes a merchant or
shopkeeper for a 'knight' as the typical burg-man or burgess, we
should still have to investigate an agrarian problem. Very likely
we ought to think that even on the eve of the Conquest the group
of men which dwells within the walls is often a group which by
tilling the soil produces a great part of its own food, though
some men may be living by handicraft or trade and some may still
be supported by those manors to which they 'belong.' In one case
the institutions that are characteristic of burh and port may
have been superimposed upon those of an ancient village which had
common fields. In another an almost uninhabited spot may have
been chosen as the site for a stronghold. In the former and, as
we should fancy, the commoner case a large choice is open to the
constructive historian, for he may suppose that the selected
village was full of serfs or full of free proprietors, that the
soil was royal demesne or had various landlords. In one instance
he may think that he sees the coalescence of several little
communities that were once distinct; in another the gradual
occupation of a space marked out by Roman walls. The one strong
hint that is given to us by Domesday Book and later documents is
that our generalities should be few and that, were this possible,
each borough should be separately studied.
As a rule, quite half of the burgesses in any of those county
towns that are fully described in the survey are the king's own
burgesses, and in some cases his share is very large. This
suggests that the land on which the borough stands has been royal
land and that the king provided the shire thegns with sites for
their haws. For their haws they have sometimes been paying him
small rents. On the other hand, at Leicester, though the king has
some 40 houses, the great majority belong to Hugh of Grantmesnil.
He has about 80 houses which pertain to 17 different manors and
which may in the past have been held by many different thegns;
but he also holds 110 houses which are not allotted to manors and
which have probably come to him as the representative of the
earls and ealdormen of an older time.(77*) This looks as if in
this case the soil had been not royal but 'comital' land at the
time when the place was fortified and when the landowners of the
shire, including perhaps the king, were obliged to build houses
within the wall. But though we fully admit that each of our
boroughs has lived its own life, our evidence seems to point to
the conclusion that in those truly ancient boroughs of which we
have been speaking, though there might be many inhabitants who
held and who cultivated arable land lying without the walls,
there were from a remote time other burgesses who were not
landowners and were not agriculturists and yet were men of
importance in the borough. If we look, for example, at the
elaborate account of Colchester we shall first read the names of
the king's burgesses. 'Of these 276 burgesses of the king, the
majority have one house and a plot of land of from one to
twenty-five acres; some possess more than one house and some have
none; they had in all 355 houses and held 1296 acres of
land'.(78*) But these were not the only burgesses. Various
magnates had houses which were annexed to their rural manors.
Count Eustace (to name a few) had 12, Geoffrey de Mandeville 2,
the Abbot of Westminster 4, the Abbess of Barking 3, and
seemingly to these houses no strips in the arable fields were
attached.(79*) Thus, though many of the burgesses may till the
soil, the borough community is not an agrarian community. We
cannot treat it as a village community that has prospered and
slowly changed its habits. A new principle has been introduced,
an element of heterogeneity. The men who meet each other in court
and market, the men who will hereafter farm the court and market,
are not the shareholders in an agricultural concern.
That tenurial heterogeneity of which we have been speaking
had another important effect. When in later days a rural manor is
being raised to the rank of a liber burgus, the introduction of
'burgage tenure' seems to be regarded as the very essence of the
enfranchisement.(80*) Probably this feature had appeared in many
boroughs at an early date. The lord with lands in Oxfordshire may
have been bound to keep a few houses and retainers in Oxford. If,
however, the commercial element in the town began to get the
better of the military element, if Oxford became a centre of
trade, then a house in Oxford could be let for a money rent. In
Domesday Book the barons are drawing rents from their borough
houses. If any return is to be made by the occupier to the owner
it will take the form of a money rent; it can hardly take another
form. Thus tenure at a money rent would become the typical tenure
of a burgage tenement. It will be a securely heritable tenure,
because the landlord is an absentee and has too few tenants in
the town to require the care of a resident reeve. But there may
have been many dwellers in some of the boroughs who were bound to
help in the cultivation of a stretch of royal or episcopal
demesne that lay close to the walls. In the west some of the
king's burgesses seem to have been holding under onerous terms.
At Shrewsbury, which lies near the border of Wales where every
girl's marriage gave rise to an amobyr, a maid had to pay ten, a
widow twenty shillings when she took a husband, and a relief of
ten shillings was due when a burgess died.(81*) At Hereford the
reeve's consent was necessary when a burgage was to be sold, and
he took a third of the price. When a burgess died the king got
his horse and arms (these Hereford burgesses were fighting men);
if he had no horse, then ten shillings 'or his land with the
houses.' Anyone who was too poor to do his service might abandon
his tenement to the reeve without having to pay for it. Such an
entry as this seems to tell us that the services were no trivial
return for the tenement.(82*)
On the other hand, we may see at Stamford what seem to be the
remains of a very free group of settlers, presumably Danes. The
town contains among other houses 77 houses of sokemen 'who hold
their lands in demesne and seek lords wherever they please, and
over whom the king has nothing but wite and heriot and toll.'
These may be the same persons who hold 272 acres of land and pay
no rent for it.(83*) At Norwich, again, we seem to hear of a time
when the burgesses were free to commend themselves to whomever
they would, and were therefore living in houses which were all
their own, and for which they paid no rent.(84*) It is very
possible that, so far as landlordly rights are concerned, there
was as much difference between the eastern and the western towns
as there was between the eastern and the western villages. Still
if we look at borough after borough, tenure at a money rent is
the tenure of the burgage houses that we expect to find, and such
a tenure, even if in its origin it has been precarious, is likely
to become heritable and secure. As to the shire thegns, they have
in some cases paid to the king small rents for their haws; but in
others, for example at Oxford, tenure by wall-work has been their
tenure, and when in other towns we find them paying rent to the
king we may perhaps see commuted wall-work.
Traces are few in Domesday Book of any property that can be
regarded as the property of a nascent municipal corporation, and
even of any that can be called the joint or common property of
the burgesses. In general each burgess holds his house in the
town of the king or of some other lord by a several title, and,
if he has laod in the neighbouring fields, this also he holds by
a several title. 'In the borough of Nottingham there were in King
Edward's day 183 burgesses and 19 villani. To this borough belong
6 carucates of land for the king's geld and one meadow and
certain small woods... This land was divided between 38 burgesses
and [the king] received 75 s. 7d. from the rent of the land and
the works of the burgesses.' 'In the borough of Derby there were
in King Edward's day 243 resident burgesses.... To this borough
belong 12 carucates of land for the geld, but they might be
ploughed by 8 teams. This land was divided among 41 burgesses who
had 12 teams.(85*) In these cases we see plainly enough that such
arable land as is in any way connected with the borough has been
held by but a few out of the total number of the burgesses.
Therefore we must deal cautiously with entries that are less
explicit. When, for example, in the description of Stamford we
read "Lagemanni et burgenses habent cclxxii acras sine omni
consuetudine,'(86*) we must not at once decide that there is any
ownership by the burgesses as a corporation, or any joint
ownership, or even that all the burgesses have strips in these
fields, though apparently the burgesses who have strips pay no
rent for them. This is the fact and the only fact that the
commissioners desire to record. They do not care whether every
burgess has a piece, or whether (as was certainly the case
elsewhere) only some of them held land outside the walls. When of
Norwich we read 'et in burgo tenent burgenses xliii
capellas,'(87*) we do not suppose that all the Norwich burghers
have chapels, still less that they hold the forty-three chapels
as co-owners, still less that these chapels belong to a
corporation. We remember that the Latin language has neither a
definite nor an indefinite article. Therefore when of 80 acres at
Canterbury, which are now held by Ralph de Colombiers, we read
'quas tenebant burgenses in alodia de rege,' we need not suppose
that these acres had belonged to the (i.e. to all the) burgesses
of Canterbury.(88*) So of Exeter it is written: 'Burgenses
Exoniae urbis habent extra civitatem terram xii caruc[arum] quae
nullam consuetudinem reddunt nisi ad ipsam civitatem.' This,
though another interpretation is possible, may only mean that
there are outside the city twelve plough-lands which are held by
burgesses whose rents go to make up that sum of £18 which is paid
to the king, or rather in part to the sheriff and in part to the
queen dowager, as the ferm of the city.(89*) Concerning
Colchester there is an entry which perhaps ascribes to the
community of burgesses the ownership or the tenancy of fourscore
acres of land and of a strip eight perches in width surrounding
the town wall; but this entry is exceedingly obscure.(90*)
Another dark case occurs at Canterbury. We are told that the
burgesses or certain burgesses used to hold land of the king 'in
their gild.'(91*) Along with this we must read another passage
which states how in the same city the Archbishop has twelve
burgesses and thirty-two houses which 'the clerks of the vill
hold in their gild.' Apparently in this last case we have a
clerical club or fraternity holding land, and the burgher's gild
may be of much the same nature, a voluntary association. Not very
long after the date of Domesday, for Anselm was still alive, an
exchange of lands was made between the convent (hired, familia)
of Christ Church and the 'cnihts' of the chapman gild of
Canterbury. The transaction takes place between the 'hired' on
the one hand, the 'heap' (for such is the word employed) on the
other. The witnesses to this transaction are Archbishop Anselm
and the 'hired' on the one hand, Calveal the portreeve and 'the
eldest men of the heap' on the other.(92*) But to see a municipal
corporation in the burghers' gild of Domesday Book would be very
rash. We do not know that all the burghers belonged to it or that
it had any governmental functions.(93*)
We may of course find that a group of burgesses has 'rights
of common;' but rights of common, though they are rights which
are to be enjoyed in common, are apt to be common rights in no
other sense, for each commoner has a several title to send his
beasts on to the pasture. Thus 'all the burgesses of Oxford have
pasture in common outside the wall which brings in [to the king]
6s. 8d.'(94*) The soil is the king's; the burgesses pay for the
right of grazing it. The roundness of the sum that they pay seems
indeed to hint at some arrangement between the king and the
burgesses taken in mass; but probably each burgess, and the lord
of each burgess, regard a right of pasture as appurtenant to a
burgage tenement. The case is striking, for we have seen how
heterogeneous a group these Oxford burgesses were.(95*) No less
than nine prelates, to say nothing of earls and barons, had
burgesses in the city. We must greatly doubt whether there is any
power in any assembly of the burgesses to take from the Bishop of
Winchester or the Count of Mortain the customary rights of
pasture that have been enjoyed by the tenants of his tenements.
We might perhaps have guessed that the boroughs would be the
places of all others in which such communalism as there was in
the ancient village community would maintain and develop itself,
until in course of time the borough corporation, the ideal
borough, would stand out as the owner of lands which lay within
and without the wall. But, if we have not been going astray, we
may see why this did not happen, at least in what we may call the
old national boroughs. The burgensic group was not homogeneous
enough. We may suppose that some members of it had inherited
arable strips and pasture rights from the original settlers; but
others were 'knights' who had been placed in the haws of the
shire-thegns, or were merchants and craftsmen who had been
attracted by the market, and for them there would be no room in
an old agrarian scheme. Indeed it is not improbable that, even as
regards rights of pasture, there was more difference between
burgess and burgess then there was between villager and villager.
In modern times it is not unknown that some of the burgesses will
have pasture rights, while others will have none, and in those
who are thus favoured we may fancy that we see the successors in
title of the king's tenants who turned out their beasts on the
king's land.(96*)
We have seen that in the boroughs a group of men is formed
whose principle of cohesion is not to be found in land tenure.
The definition of a burgess may involve the possession of a house
within or hard by the walls; but the burgesses do not coalesce as
being the tenants or the men of one lord; and yet coalesce they
will. They are united in and by the moot and the market-place,
united under the king in whose peace they traffic; and then they
are soon united over against the king, who exacts toll from them
and has favours to grant them. They aspire to farm their own
tolls, to manage their own market and their own court. The king's
rights are pecuniary rights; he is entitled to collect numerous
small sums. instead of these he may be willing to take a fixed
sum every year, or, in other words, to let his rights to farm.
This step seems to have been very generally taken before the
Conquest. Already the boroughs were farmed. Now the sums which
the king would draw from a borough would be of several different
kinds. In the first place, there would be the profits of the
market and of the borough court. In the second place, there would
be the gafol, the 'haw-gavel' and 'land-gavel' arising from
tenements belonging to the king and occupied by burgesses. In the
third place, there might be the danegeld; but the danegeld was a
tax, an occasional tax, and for the moment we may leave it out of
our consideration. Now the profits of the market and court seem
to have been farmed. The sums that they bring in to the king are
round sums. The farmer seems to have been the sheriff or in some
cases the king's portreeve. We can find no case in which it is
absolutely clear to our minds that the borough. itself, the
communitas burgi, is reckoned to be the king's farmer. Again, the
king's gafol, that is his burgage rents, may be farmed: they are
computed at a round sum. Thus at Huntingdon ten pounds are paid
by way of land-gafol, and we may be fairly certain that the sum
of the rents of the individual burgesses who held their tenements
immediately of the king (there were other burgesses who belonged
to the Abbot of Ramsey) did not exactly make up this neat
sum.(97*) In this case, however, the sum due to the king from his
farmer, probably the sheriff, in respect of the land-gafol is
expressly distinguished from the sum that he has to pay for the
farm of the borough (firma burgi): -- at least in its narrowest
sense, the burgus which is farmed is not a mass of lands and
houses, it is a market and a court.(98*) But, though we find no
case in which the community of the borough is unambiguously
treated as the king's farmer, there are cases in which it seems
to come before us as the sheriff's farmer. 'The burgesses' of
Northampton pay to the sheriff £30 10s. per annum: -- 'this
belongs to his farm.'(99*) The sheriff of Northamptonshire is
liable to the king for a round sum as the farm of the shire, but
'the burgesses' of Northampton are liable to the sheriff for a
round sum. This may mean that for this round sum they are jointly
and severally liable, while, on the other hand, they collect the
tolls and fines, perhaps also the king's burgage rents, and have
an opportunity of making profit by the transaction.
We must not be in haste to expel the sheriff from the
boroughs of the shire, or to bring the burgesses into immediate
contact with the king's treasury. We must remember that at the
beginning of Henry II's reign there is scarcely an exception to
the rule that the boroughs of the shire are in the eyes of
auditors at the Exchequer simply parts of that county which the
sheriff farms. So far as the farm is concerned, the royal
treasury knows nothing of any boroughs.(100*) The sheriff of
Gloucestershire, for example, accounts for a round sum which is
the farm of his county; neither he nor any one else accounts to
the king for any farm of the borough of Gloucester. If, as is
most probable, the borough is being farmed, it is being farmed by
some person or persons to whom, not the king, but the sheriff has
let it for a longer or shorter period at a fixed rent. Here,
again, we see the likeness between a borough and a hundred. The
king lets the shire to farm; the shire includes hundreds and
boroughs; the sheriff 'lets the hundreds to farm; the sheriff
lets the boroughs to farm.' A few years later a new arrangement
is made. The king begins to let the borough of Gloucester to
farm. A sum of £50 (blanch) is now deducted from the rent that
the sheriff has been paying for his shire, and, on the other
hand, Osmund the reeve accounts for £55, which is the rent of the
borough. We must not antedate a change which is taking place very
gradually in the middle of the twelfth century. Nor must we at
once reject the inference that, as the bailiffs to whom the
sheriff lets the hundreds are chosen by him, so also the bailiffs
or port-reeves to whom he lets the boroughs are or have been
chosen by him. It seems very possible that one of the first steps
towards independence that a borough takes is that its burgesses
induce the sheriff to accept their nominee as his farmer of the
town if they in mass will make themselves jointly and severally
liable for the rent. These movements take place in the dark and
we cannot date them; but to antedate them would be easy.
We also see that the 'geld' that the borough has to pay is a
round sum that remains constant from year to year. Cambridge, for
example, is assessed at a hundred hides, Bedford at half a
hundred.(101*) Now we have good reason to believe that in the
open country also, a round sum of geld or (and this is the same
thing) a round number of hides had been thrown upon the hundreds,
that the sum thrown upon a hundred was then partitioned among the
vills, and that the sum thrown upon a vill was partitioned among
the persons who held land in the vill. In the open country,
however, when once the partition had-been made, the number of
hides that was cast upon the land of any one proprietor seems to
have been fixed for good and all.(102*) If we suppose, for
example, that a vill had been assessed at ten hides and that five
of those units had been assigned to a certain Edward, then Edward
or his successors in title would always have to pay for five
hides, and would have to pay for no more although the other
proprietors in the vill obtained an exemption from the tax or
were insolvent. In short, the tax though originally distributed
by a partitionary method was not repartitionable. On the other
hand, in the boroughs a more communal arrangement seems to have
prevailed. In some sense or another, the whole borough, no matter
what its fortunes might be, remained answerable for the twenty,
fifty or a hundred hides that had been imposed upon it. Such a
difference would naturally arise. In the open country the
taxational hidation was supposed to represent and did represent,
albeit rudely, a state of facts that had once existed. The man
who was charged with a hide ought in truth to have had one of
those agrarian units that were commonly known as hides. But when
a borough was charged with hides, a method of taxation that was
adapted to and suggested by rural arrangements was being
inappropriately applied to what had become or would soon become
an urban district. Thus the gross sum that is cast upon the
borough does not split itself once and for all into many small
sums each of which takes root in a particular tenement. The whole
sum is eligible from the whole borough every time a geld is
imposed. It is repartionable.
For all this, however, we must be careful not to see more
communalism or more local self-government than really exists. At
first sight we may think that we detect a communal or a joint
liability of all the burgesses for the whole sum that is due from
the borough in any one year. 'The English born' burgesses of
Shrewsbury send up a piteous wail.(103*) They still have to pay
the whole geld as they paid it in the Confessor's day, although
the earl has taken for his castle the sites of fifty-one houses,
and other fifty houses are waste, and forty-three French
burgesses hold houses which used to pay geld, and the earl has
given to the abbey, which he has founded, thirty-nine burgesses
who used to pay geld along with the others. But when we examine
the matter more closely, we may doubt whether there is here any
joint and several (to say nothing of any corporate) liability.
Very various are the modes in which a land-tax or house-tax may
be assessed and levied. Suppose a tax of £100 imposed upon a
certain district in which there are a hundred houses. Suppose it
also to be law that, though some of these houses come to the
hands of eleemosynary corporations (which we will imagine to
enjoy an immunity from taxation) still the whole £100 must be
raised annually from the householders of the district. For all
this, we have not as yet decided that any householder will ever
be liable, even in the first instance, for more than his own
particular share of the £100. A readjustment of taxation there
must be. It may take one of many forms. There may be a
revaluation of the district, and the £100 may be newly
apportioned by some meeting of householders or some government
officer. But, again the readjustment may be automatic. Formerly
there were 100 houses to pay £100. Now there are 90 houses to pay
£100. That each of the 90 must pay ten-ninths of a pound is a
conclusion that the rule of three draws for us. In the middle
ages an automatic readjustment was all the easier because of the
common assumption that the value of lands and houses was known to
everyone and that one virgate in a manor was as good as another,
one 'haw' in a borough as good as another.(104*) We do not say
that the complaint of the burgesses at Shrewsbury points to no
more than an automatic readjustment of taxation which all along
has been a taxation of individuals; still the warning is needful
that the exaction at regular or irregular intervals of a fixed
amount from a district, or from the householders or inhabitants
of a district, an amount which remains constant though certain
portions of the district obtain immunity from the impost, does
not of necessity point to any kind of liability that is not the
liability of one single individual for specific sums which he and
he only has to pay; nor does it of necessity point to any
self-governing or self-assessing assembly of inhabitants.(105*)
Returning, however, to the case of Northampton, it certainly
seems to tell us of a composition, not indeed between the
burgesses and the king, but between the burgesses and the
sheriff. 'The burgesses of Northampton pay to the sheriff £30
10s.' We may believe that 'the burgesses' who pay this sum have a
chance of making a profit. If so, 'the burgesses' are already
beginning to farm 'the borough.' From this, nevertheless, we must
not leap to corporate liability or corporate property. Very
likely the sheriff regards every burgess of Northampton as liable
to him for the whole £30 10s.; very certainly, as we think, he
does not look for payment merely to property which belongs, not
to any individual burgess nor to any sum of individual burgesses,
but to 'the borough' of Northampton. Nor if the burgesses make
profit out of tolls and fines, does it follow that they have a
permanent common purse; they may divide the surplus every
year,(106*) or we may suspect them of drinking the profits as
soon as they are made.
Entries which describe the limits that are set to the duty of
military or of naval service may seem more eloquent. Thus of
Dover we are told that the burgesses used to supply twenty ships
for fifteen days in the year with twenty-one men in each ship,
and that they did this because the king had released to them his
sake and soke.(107*) Here we seem to read of a definite
transaction between the king of the one part and the borough of
the other part, and one which implies a good deal of governmental
organization in the borough. We would say nothing to lessen the
just force of such a passage, which does not stand alone;(108*)
but still there need be but little more organization in the
borough of Dover than there is in Berkshire. It was the custom of
that county that, when the king summoned his host, only one
soldier went from every five hides, while each hide provided him
with four shillings for his equipment and wages.(109*) We may
guess that in a county such a scheme very rapidly 'realized'
itself and took root in the soil, that in a borough there was
less 'realism,' that there were more frequent readjustments of
the burden; but the difference is a difference of degree.
Of anything that could be called the constitution of the
boroughs, next to nothing can we learn. We may take it that in
most cases the king's farmer was the sheriff of the shire; in
some few cases, as for example at Hereford, the reeve of the
borough may have been directly accountable to the king.(110*) We
know no proof that in any case the reeve was an elected officer.
Probably in each borough a court was held which was a court for
the borough; probably it was, at least as a general rule,
co-ordinate with a hundred court, and indeed at starting the
borough seems to be regarded as a vill which is also a
hundred.(111*) The action of this court, however, like the action
of other hundred courts, must as time went on have been hampered
by the growth of seignorial justice. The sake and soke which a
lord might have over his men and over his lands were certainly
not excluded by the borough walls. He had sometimes been
expressly told that he might enjoy these rights 'within borough
and without borough.' It is difficult for us to realize the exact
meaning that 'sake and soke' would bear when ascribed to a
prelate or thegn who had but two or three houses within the town.
Perhaps in such cases the town houses were for jurisdictional
purposes deemed to be situate within some rural manor of their
lord. But in a borough a lord might have a compact group of
tenants quite large enough to form a petty court. In such a case
the borough court would have the seignorial courts as rivals, and
many a dispute would there be. At Lincoln one Tochi had a hall
which undoubtedly was free 'from all custom'; but he had also
thirty houses over which the king bad toll and forfeiture. So the
burgesses swore; but a certain priest was ready to prove by
ordeal that they swore falsely.(112*) In these cases the lord's
territory would appear in later times as a little 'liberty' lying
within the borough walls. The middle ages were far spent before
such liberties had become more petty nuisances.(113*) In the old
cathedral towns, such as Canterbury and Winchester, the bishop's
jurisdictional powers and immunities were serious affairs, for
the bishop's tenants were numerous.(114*) Nevertheless, in the
great and ancient boroughs, the boroughs which stand out as types
and models, there was from a very remote time a court, a
borough-moot or portman-moot, which was not seignorial, a court
which was a unit in a national system of courts.
Of the form that the borough court took we can say little.
Perhaps at first it would be an assembly of all the free burgmen
or port-men. As its business increased in the large boroughs, as
it began to sit once a week instead of thrice a year, a set of
persons bound to serve as doomsmen may have been formed, a set of
aldermen or lawmen whose offices might or might not be
hereditary, might or might not 'run with' the possession of
certain specific tenements. A 'husting' might be formed, that is,
a house-thing as distinct from a 'thing' or court held in the
open air. Law required that there should be standing witnesses in
a borough, before whom bargains and sales should take place. Such
a demand might hasten the formation of a small body of doomsmen.
In Cambridge there were lawmen of thegnly rank;(115*) in Lincoln
there were twelve lawmen;(116*) in Stamford there had been
twelve, though at the date of Domesday Book there were but
nine;(117*) we read of four iudices in York,(118*) and of twelve
iudices in Chester.(119*) So late as 1275 the twelve lawmen of
Stamford lived on in the persons of their heirs or successors.
There are, said a jury, twelve men in Stamford who are called
lawmen because their ancestors were in old time the judges of the
laws (iudices legum) in the said town; they hold of the king in
chief; by what service we do not know. but you can find out from
Domesday Book.(120*) Over the bodies of these, presumably,
Danish, lawmen there has been much disputation. We know that
taken individually the lawmen of Lincoln were holders of
heritable franchises, of sake and soke. We know that among the
twelve iudices of Chester were men of the king, men of the earl,
men of the bishop; they had to attend the 'hundred', that is, we
take it, the borough court. We know no more; but it seems likely
that we have to deal with persons who collectively form a group
of doomsmen, while individually each of them is a great man, of
thegnly rank, with sake and soke over his men and his lands; his
office passes to his heir.(121*) On the whole, however, we must
doubt whether the generality of English boroughs had arrived at
even this somewhat rudimentary stage of organization. In 1200 the
men of Ipswich, having received a charter from King John, decided
that there should be in their borough twelve chief portmen, 'as
there were in the other free boroughs in England,' who should
have full power to govern and maintain the town and to render the
judgments of its court.(122*) Now Ipswich has a right to be
placed in the class of ancient boroughs, of county towns, and yet
to all appearance it had no definite class of chief men or
doomsmen until the year 1200. Still we ought not to infer from
this that the town moot had been in practice a democratic
institution. There may be a great deal of oligarchy, and
oligarchy of an oppressive kind, though the ruling class has
never been defined by law. Domesday Book allows us to see in
various towns a large number of poor folk who cannot pay taxes or
can only pay a poll tax. We must be chary of conceding to this
crowd any share in the dooms of the court.(123*)
But what concerns the government of the boroughs has for the
time been sufficiently said by others. In our few last words we
will return to our first theme, the difference between the
borough and the mere township.
We have seen that in Domesday Book a prominent position is
conceded to certain towns. They are not brought under any rubric
which would place them upon the king's or any other person's
land. It must now be confessed that there are some other towns
that are not thus treated and that none the less are called
boroughs. If, however, we remember that burgesses often are in
law where they are not in fact, the list that we shall make of
these boroughs will not be long. Still such boroughs exist and a
few words should be said about them. They seem to fall into two
classes, for they are described as being on the king's land or on
the land of some noble or prelate. Of the latter class we will
speak first. It does not contain many members and in some cases
we can be certain that in the Confessor's day the borough in
question had no other lord than the king. Totness is a case in
point. It now falls under the title Terra Judhel de Tottenais;
but we are told that King Edward held it in demesne.(124*) In
Sussex we see that Steyning, Pevensey and Lewes are called
burgi,(125*) Steyning is placed on the land of the Abbot of
Fécamp, Pevensey on that of the Count of Mortain and Lewes on
that of William of Warenne; but at Lewes there have been many
haws appurtenant to the rural manors of the shire thegns.(126*)
In Kent the borough of Hythe seems to be completely under the
archbishop.(127*) He has burgesses at Romney over whom he has
justiciary rights, but they serve the king.(128*) The 'little
borough called Fordwich' belonged to the Abbot of St Augustin.
But of this we know the history. The Confessor gave him the royal
two-thirds, while the bishop of Bayeux as the successor of Earl
Godwin gave him the comital one-third.(129*) Further north, Louth
in Lincolnshire and Newark in Nottinghamshire seem to be
accounted boroughs; they both belong to the bishop of Lincoln;
but in the case of Newark (which was probably an old burh) we may
doubt whether his title is very ancient.(130*) We are told that
at Tattershall, the Pontefract of later days,(131*) there are
sixty 'minute burgesses,' that is, we take it, burgesses in a
small way. Ilbert de Lacy is now their lord; but here again we
may suspect a recent act of mediatization.(132*) Grantham in
Lincolnshire is placed on the Terra Regis; it had belonged to
Queen Edith; there were, however, seventy-seven tofts in it which
belonged to 'the sokemen of the thegns,' that is, to the sokemen
of the thegns of the shire.(133*) Then in Suffolk we see that
Ipswich is described at the end of the section which deals with
the royal estates; a similar place is found for Norwich, Yarmouth
and Thetford in the survey of Norfolk.(134*) But for Dunwich we
must look elsewhere. There were burgesses at Dunwich; but to all
seeming the royal rights over the town had passed into the hands
of Eadric of Laxfield.(135*) The successor of the same Eadric has
burgesses among his tenants at Eye.(136*) There are burgesses at
Clare, though Clare belongs altogether to the progenitor of the
lordly race which will take its name from this little town.(137*)
But at least in this last case, the burgesses may be new-comers,
or rather perhaps we may see that an old idea is giving way to a
newer idea of a borough, and that if men engaged in trade or
handicraft settle round a market-place and pay money-rents to a
lord they will be called burgesses, though the town is no
national fortress. At Berkhampstead 52 burgesses are collected in
a burbium, but they may be as new as the two arpents of
vineyard.(138*) We must not say dogmatically that never in the
days before the Conquest had a village become a borough while it
had for its one and only landlord some person other than the
king, some bishop, or some thegn. This may have happened at
Taunton. In 1086, there were burgesses at Taunton and it enjoyed
'burh-riht,' and yet from a very remote time it had belonged to
the bishops of Winchester. But the cases in which we may suppose
that a village in private hands became a burgus and that this
change took place before the Norman invasion seem to be extremely
few. In these few the cause of the change may have been that the
king by way of special favour imposed his burhgrid upon the town
and thereby augmented the revenue of its lord.(139*)
As to the boroughs that are regarded as standing on the
king's land, these also seem to be few and for the more part they
are small. There are burgesses at Maldon;(140*) but Maldon is not
placed by the side of Colchester;(141*) it is described among,
but Bristol the royal estates. There are burgesses at
Bristol;(142*) is not placed beside Gloucester and Winchcombe.
Perhaps we should have heard more of it, if it had not, like
Tamworth, stood on the border of two counties. In the south-west
the king's officials seem to be grappling with difficulties as
best they may. In Dorset they place Dorchester, Bridport, Wareham
and Shaftesbury above the rubric Terra Regis,(143*) and we cannot
find that they reckon any other place as a borough. In Devonshire
we see Exeter above the line; Lidford and Barnstaple, however,
are called boroughs though they are assigned to the king's land,
and (as already said) Totness is a borough, though it is
mediatized and is described among the estates of its Breton
lord.(144*) No borough in Somerset is placed above the line,
though we learn that the king has 107 burgesses in Ilchester who
pay him 20 shillings,(145*) and that he and others have burgesses
at Bath.(146*) Perhaps the space that stands vacant before the
list of the tenants in chief should have been filled with some
words about these two towns. Axbridge, Langport and Milborne seem
to be boroughs; Axbridge and Langport occur in that list of
ancient fortresses which we have called The Burghal Hidage.(147*)
Wells was an episcopal, Somerton a royal manor; we have no reason
for calling either of them a borough. In Hampshire another of the
ancient fortresses, Twyneham (the modern Christ Church) is still
called burgus, but seems to be finding its level among the royal
manors.(148*) In Wiltshire Malmesbury and Marlborough are placed
above the line. We learn that the king receives £50 from the
burgus of Wilton,(149*) and we also learn incidentally that
various lords have burgesses in that town; for example, the
bishop of Salisbury has burgesses in Wilton who belong to his
manor of Salisbury.(150*) Old Salisbury ('old Sarum' as we
foolishly call it) seems to be a mere manor belonging to the
bishop; but the king receives its third penny. He receives also
the third penny of Cricklade, which we have named before now as
one of the old Wessex strongholds, and several of the county
magnates had burgesses there. On the other hand Calne, Bedwind
and Warminster are reckoned to be manors on the king's land.
Burgesses belong to them; but whether those burgesses are really
resident in them may not be quite certain.(151*) Devizes we
cannot find. That puzzles should occur in this quarter is what
our general theory might lead us to expect. In the old home of
the West-Saxon kings there may well have been towns which had
long ago secured the name and the peace of royal burgs, though
they manifested none of that tenurial heterogeneity which is the
common mark of a borough. A town, a village, which not only
belonged to the king but contained a palace or house in which he
often dwelt, would enjoy his special peace, and might maintain
its burghal dignity long after there was little, if any, real
difference between it and other manors or villages of which the
king was the immediate landlord. Already in 1086 there may have
been 'rotten boroughs,' boroughs that were rotten before they
were ripe.(152*)
A borough belongs to the genus villa (tún). In age after age
our task is to discover its differentia, and the task is hard
because, as age succeeds age, changes in law and changes in fact
are making the old distinctions obsolete while others are
becoming important. Let us observe, then, that already when
Domesday Book was in the making those ancient attributes of which
we have been speaking were disappearing or were fated soon to
disappear. We have thought of the typical borough as a fortified
town maintained by a district for military purposes. But already
the shire thegns have been letting their haws at a rent and
probably have been letting them to craftsmen and traders. Also
the time has come for knight-service and castles and
castle-guard. We have thought of the typical borough as the
sphere of a special peace. But the day is at hand when a
revolution in the criminal law will destroy the old system of wer
and wíte and bót, and the king's peace will reign always and
everywhere.(153*) We have thought of the typical borough as a
town which has a court. But the day is at hand when almost every
village will have its court, its manorial court. New contrasts,
however, are emerging as the old contrasts fade away. Against a
background of villeinage and week-work, the borough begins to
stand out as the scene or burgage tenure. The service by which
the burgess holds his tenement is a money rent. This may lead to
a large increase in the number of boroughs. If a lord
enfranchises a manor, abolishes villein customs, takes money
rents, allows his tenants to farm the court and perhaps also to
farm a market that he has acquired from the king, he will be said
to create a liber burgus.(154*) Merchant gilds, elected bailiffs,
elected mayors and common seals will appear and will complicate
the question. There will follow a time of uncertainty and
confusion when the sheriffs will decide as suits them best which
of the smaller towns are boroughs and which are not.
If the theory that we have been suggesting is true, all or
very nearly all our ancient boroughs (and we will draw the line
of ancientry at the Conquest) are in their inception royal
boroughs. The group of burgesses when taken as a whole had no
superior other than the king. His was the peace that prevailed in
the streets; the profits of the court and of the market were his,
though they were farmed by a reeve. Rarely, however, was he the
landlord of all the burgesses. In general not a few of them lived
in houses that belonged to the thegns of the shire. We must be
careful therefore before we speak of these towns as 'boroughs on
the royal demesne.' For the more part, the compilers of Domesday
Book have refused to place them on the Terra Regis. In course of
time some of them will be currently spoken of as boroughs on or
of the royal demesne. The rights of those who represent the
thegns of the shire will have become mere rights to rent, and,
their origin being forgotten, they will even be treated as mere
rent-charges.(155*) The great majority of the burgesses will in
many instances be the king's immediate tenants and he will be the
only lord of that incorporeal thing, 'the borough,' the only man
who can grant it a charter or let it to farm. But we must
distinguish between these towns and those which at the Conquest
were manors on the king's land. These latter, if he enfranchises
them, will be boroughs on the royal demesne in an exacter sense.
So, again, we must distinguish between those ancient boroughs
which the king has mediatized and those manors of mesne lords
which are raised to the rank of boroughs. We have seen that from
the ancient borough the king received a revenue of tolls and
fines. Therefore he had something to give away. He could
mediatize the borough. Domesday Book shows us that this had
already been done in a few instances.(156*) At a later time some
even of the county towns passed out of the king's hands into the
hands of earls. This happened at Leicester and at Warwick. The
earl succeeded to the king's rights, and the burgesses had to go
to the earl for their liberties and their charters. But such
cases are very distinct from those in which a mesne lord grants
an enfranchising charter to the men of a place which has hitherto
been one of his manors, and by speaking of boroughs which are 'on
the land of mesne lords' we must not confuse two classes of towns
which have long had different histories. In the ancient boroughs
there is from the first an element that we must call both
artificial and national. The borough does not grow up
spontaneously; it is made; it is 'wrought'; it is 'timbered.' It
has a national purpose; it is maintained 'at the cost of the
nation' by the duty that the shire owes to it. This trait may
soon have disappeared, may soon have been forgotten, but a great
work had been done. In these nationally supported and
heterogeneously peopled towns a new kind of community might wax
and thrive.
NOTES:
1. A sketch of the principal argument of this section was
published in Eng. Hist. Rev., xi. 13, as a review of Keutgen's
Untersuchungen über den Ursprung der deutschen Stadtverfassung.
The origin of the French and German towns bas become the theme of
a large and very interesting literature. A good introduction to
this will be found in an article by M. Pirenne, L'origine des
constitutions urbaines, Revue historique, liii. 52, lvii. 293,
and an article by Mr Ashley, Quarterly Journal of Economics, vol.
x. July, 1896. The continuous survival of Roman municipal
institutions even in Gaul seems to be denied by almost all modern
students.
2. Hist. Eng. Law, i. 625.
3. Stubbs, Const. Hist. iii. 448.
4. We must exclude cases in which the king takes an aid from his
whole demesne, e.g. for his daughter's marriage, for in such a
case many royal manors which have no right to be called boroughs
must make a gift.
5. Round, Geoffrey de Mandeville, 347, has excellent remarks on
this point.
6. Nearly.
7. This may come only from the Staffordshire part of Tamworth.
8. Chichester pays in later years; but very little.
9. Pipe Roll, 31 Hen. I. p. 139.
10. Was the blank space in D. B. i. 246 left for the borough of
Tamworth? This borough is incidentally mentioned in D. B. i. 238,
246, 246 b.
11. But the account of the two sister boroughs here falls between
the accounts of the two sister counties.
12. D. B. i. 337. It is even called a suburbium of Lincoln,
though it lies full 10 miles from the city.
13. The one glimpse that I have had of the manuscript suggested
to me (1) that the accounts of some of the boroughs were
postscripts, and (2) that space was left for accounts of London
and Winchester. The anatomy of the book deserves examination by
an expert.
14. D. B. i. 154.
15. D. B. i. 56.
16. D. B. i. 58.
17. D. B. i. 238.
18. D. B. i. 143.
19. Ellis, Introduction, ii. 446; Winchcombe Land-boc, ed. Royce,
p. xiv; Stevenson, Rental of Gloucester, p. ix.
20. D. B. i. 128, 128 b; and above, p. 144.
21. K. 855 (iv. 211).
22. Stow, Survey, ed. Strype, Bk. iii. p. 121.
23. D. B. i. 135 b.
24. Hist. Eng. Law, i. 636.
25. Rot. Hund. ii. 361.
26. D. B. i. 189.
27. Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890,
p. x.
28. There are many examples in Kemble's Codex.
29. Pipe Roll, 31 Hen. I. p. 41: 'Vicecomes reddit compotum de
£80 de auxilio civitatis.... Et in perdonis.... Comiti de Mellent
25 sol.... Comiti de Lerecestria 35 sol.... Comiti de Warenna 16
sol.... Comiti. Gloecestriae 116 sol. et 8 den. See also the
Liber Wintoniae, D. B. iv. 531 ff.
30. In the A.-S. land-books the word civitas is commonly applied
to Worcester, Winchester, Canterbury, and other such places,
which are both bishops' sees and the head places of large
districts. But (K. v. p. 180) Gloucester is a civitas, and for
some time after the Conquest it is rather the county town than
the cathedral town that bears this title. Did anyone ever speak
of Selsey or Sherborne as a civitas? In 803 (K. v. p. 65) the
bishops of Canterbury, Lichfield, Leicester, Sidnacester,
Worcester, Winchester, Dunwich, London and Rochester style
themselves bishops of civitates, while those of Hereford,
Sherborne, Elmham and Selsey do not use this word. But an
inference from this would be rash.
31. An interesting example is this. In 779 Offa conveys to a
thegn land at Sulmonnesburg. The boundaries mentioned in the
charter are those of the present of Bourton-on-the-Water.
'Sulmonnesburg... is the ancient camp parish close to Bourton
which gave its name to the Domesday Hundred of Salmanesberie, and
at a gap in the rampart of which a Court Leet was held till
recently.' See C. S. Taylor, Pre-Domesday Hide of
Gloucestershire, Trans. Bristol and Gloucestershire Archaeol.
Soc. vol. xviii. pt. 2. As regards the nanmes of hills and of
villages named from hills there may occasionally be some
difficulty in marking off those which go back to beorh (berry,
berrow, barrow) from those which go back to burh (burgh, borough,
bury). Mr. Stevenson tells me that in the West of England the
termination -borough sometimes represents -beorh.
32. Alfred, 40; Ine, 45.
33. Aethelr. iv. 4. The Quadripartitus is our only authority for
these Instituta; but Dr. Liebermann (Quadrip. p. 138) holds that
the translator had in front of him a document written before the
Conquest. Schmid would read borh-bryce: see p. 541; but this
emendation seems needless. Has lIot the sum been Normanized? The
king's burh-bryce used to be 120 (i.e. in English 'a hundred')
shillings, and a hundred Norman shillings make £5. So according
to the Berkshire custom (D. B. i. 56 b) he who by night breaks a
civitas pays 100 shillings to the king and not (it is noted) to
the sheriff.
34. D. B. i. 2: 'Concordatum est de rectis callibus quae habent
per civitatem introitum et exitum, quicunque in illis
forisfecerit, regi emendabit.' See the important document
contained in a St. Augustin's Cartulary and printed in Larking,
Domesday of Kent, Appendix, 35: 'Et omnes vie civitatis que
habent duas portas, hoc est introitum et exitum, ille sunt de
consuetudine Regis.'
35. Schmid, App. XII; Leg. Henr. c. I6.
36. Fleta, p. 66; see also 13 Ric. II. stat. I. cap. 3.
37. Edmund, II, 2.
38. See also Schmid, App. IV gride and be munde), section 15; 'If
any man fights or steals in the king's burh or the neighbourhood
(the 'verge'), he forfeits his life, if the king will not concede
that he be redeemed by a wergild.'
39. AEthelstan, II. 20.
40. K. 1334 (vi. p. 195): a contract made at Exeter before Earl
Godwin and all the shire.
41. Edgar, III. 5; Cnut, II. I8.
42. Mention is made of the walls of Rochester and Canterbury in
various charters from the middle of cent. viii onwards: K. vol.
i. pp. 138, 183, 274; vol. ii. pp. I, 26, 36, 57, 86; vol. v. p.
68.
43. Green, Conquest of England, 189-207.
44. For instance, K. iii. pp. 5, 50.
45. K. I 154 (v. 302): 'adiacent etiam agri quamplurimi circa
castellum quod Welingaford vocitatur.' K. 152 (i. 183): 'castelli
quod nominatur Hrofescester.' -- K. 276 (ii. 57): 'castelli
Hrobi.'
46. A beautiful example is given by Staffordshire and
Warwickshire. Each has its borough in its centre, while Tamworth
on the border is partly in the one shire, partly in the other.
See Pipe Roll, 31 Hen. I. 75, 76, 107, 108. As to these Mercian
shires, see Stubbs, Const. Hist., i. 123; Green, Conquest of
England, 237: 'Hertfordshire, Buckinghamshire and Bedfordshire
are other instances of purely military creation, districts
assigned to the fortresses which Eadward raised at these points.'
47. See our index under Burghal Hidage. Mr W. H. Stevenson's
valuable aid in the identification of these burgs is gratefully
acknowledged.
48. D. B. i. 154.
49. D. B. i. 262 b.
50. It will be understood that we are not contending for an exact
correspondence between civil and military geography. Oxford and
Wallingford are border towns. Berkshire men help to Oxford, and
Oxfordshire men help to maintain Wallinford.
51. Widukind, 1. 35. For comments see Waitz, Heinrich V. 95 ;
Richter, Annalen, iii. 8; Giesebrecht, Kaiserzeit (ed. 5), i.
222, 811; Keutgen, Ursprung der deutschen Stadtverfassung, p. 44.
Giesebrecht holds that Edward's measures may well have been
Henry's model.
52. A.-S. Chron. ann. 894.
53. A charter of 899 (K. v. p. 141) professes to tell how King
Alfred, Abp Plegmund and AEthelred ealdorman of the Mercians held
a moot 'de instauratione urbis Londoniae.' One result of this
moot was that two plots of land inside the walls, with hythes
outside the walls, were given by the king, the one to the church
of Canterbury,the other to the church of Worcester. How will the
instauratio of London be secured by such grants?
54. K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673
(Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235
(Winchester).
55. K. 765-6, 805.
56. Schmid, App. V This might mean a seat (of justice) in the
gate of his own burh. But this dOcument will hardly be older
than, if so old as, cent. x., by which time we should suppose
that burh more often pointed to a borough than to a strong house.
We may guess that in the latter sense it was supplanted by the
hall of which we read a great deal in Domesday. See above, p.
109. However, it does not seem certain that O. E. geat can mean
street.
57. A.-S. Chron. ann. 994.
58. Thorpe, Diplomatarium, 610. When the Confessor sends a writ
to London he addresses it to the bishop, portreeve and
burh-thegns. See K. iv. pp. 856, 857, 861, 872.
59. Gross, Gild Merchant, i. 183, 189.
60. Gross, op. cit. ii. 37.
61. Hist. Eng. Law, i. 257.
62. A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to
Lundenne belumpon...' Thorpe thought good to substitute scipan
for sciran.
63. D. B. i. 298. Outside York were some lands which gelded with
the city; 'et in tribus operibus Regis cum civibus erant.' This
refers to the trinoda necessitas.
64. Sohm, Die Entstehung des deutschen Städtewesens: Leipzig,.
1890.
65. Ellis, Introduction , i. 248-253.
66. D. B. i. 56 b.
67. D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the
herring season, that is fronm St. Michael's Day to St. Clement's
(Nov. 23).' St. Andrew's Day is Dec. 1.
68. Edward, I. 1; AEthelstan, II. 12, 13; IV. 2; VI. 10; Edmund,
III. 5; Edgar, IV. 7-11 ; Leg. Will. I. 45; Leg. Will. III. 10.
See Schmid, Glossar. s. v. Marktrecht.
69. Edgar, IV. 3-6. We should expect rather 36 than 33, and xxxvi
might easily become xxxiii.
70. 3. K. 280 (ii. 63), 316 (ii. 118).
71. Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328;
Thorpe, 136: 'ge landfeoh, ge fihtwite, ge stale, go wohceapung,
ge burhwealles sceatinge.' In D. B. i. 173 it is said that the
Bishop of Worcester had received received the third penny of the
borough. Apparently in the Confessor's day he received £6, the
third of a sum of £18. As to the early history of markets, see
the paper contributed by Mr C. I. Elton to the Report of the
Royal Commission on Market Rights, 1889.
72. AEthelstan, II. 14.
73. The general equivalence of port and burh we may perhaps infer
from AEthelstan, II. 14: No one is to coin money outside a port,
and there is to be a moneyer in every burh.
74. Stockport, Langport, Amport, Newport-Pagnell, Milborne Port,
Littleport are instances. But a very small river might be
sufficient to make a place a haven.
75. Seemingly if this O.-E. port is not Lat. portus, it is Lat.
porta, and there is some fascination suggestion that the
burh-geat, or in modern German the Burg-gasse, in which the
market is held, was described in Latin as porta burgi. In A.D.
762 (K. i. p. 133) we have a house 'quae iam posita est.' ad
Quenegatum urbis Dorouernis in foro posita est.' In A.D. 845 (K.
ii. p. 26) we find a 'publica strata' in Canterbury 'ubi
appellatur Weoweraget,' that is, the gate of the men of Wye. But
what we have to account for is the adoption of port as an English
word, and if our ancestors might have used geat, they need not
have borrowed. In A.D. 857 (K. ii. p. 63) the king bestows on the
church of Worcester certain liberties at a spot in the town of
London, 'hoc est, quod habeat intus liberaliter modium et pondera
et mensura sicut in porto mos est ad fruendum.' To have public
weight and measures is characteristic of a portus ( = haven). The
word may have spread outwards from London. Dr Stubbs (Const.
Hist. i. 439) gives a weighty vote for porta; but the continental
usage deserves attention. Pirenne, Revue historique, lvii. 75:
'Toutes les villes anciennes [en Flandre] s'y forment au bord des
eaux et portent le nom caractéristique de portus, c'est-à-dire de
débarcadères. C'est de ce mot portus que vient le mot flamand
poorter, qui désigne le bourgeois.' See D. B. i, 181 b: 'in
Hereford Port.'
76. D. B. i. 143,
77. D. B. i. 230.
78. Cutts, Colchester, 65; Round in The Antiquary, vol. vi
(1882), p. 5.
79. D. B. ii. 106-7. See Round, op. cit., p. 25 2.
80. Hist. Eng. Law, i. 629.
81. D. B. i. 252.
82. D. B. i. 179. So at Chester (i. 262 b) it is considered
possible that the heir will not be able to pay the relief of ten
shillings and will forfeit the tenement.
83. D. B. i. 336.
84. D. B. ii. 116. See also the case of Thetford (D. B. ii, 119),
where there had been numerous burgesses who could choose their
lords.
85. D. B. i. 280.
86. D. B. i. 336 b.
87. D. B. ii. 117.
88. D. B. i. 2. In 923 (K. v. p. 186) we hear of land outside
Canterbury alled Burhuuare bocaceras, apparently acres booked to
[certain] burgesses.
89. D. B. i. 100.
90. D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae;
et circa murum viii percae; de quo toto per annum habent
burgenses lx. sol. ad servicium regis si opus fuerit, sin autem,
in commune dividunt.' As to this most difficult passage, see
Round, Antiquary, vol. vi. (1882) p. 97. Perhaps the most natural
interpretation of it is that the community or commune of the
burgesses holds this land and receives by way of rent from
tenants, to whom it is let, the sum of 60 shillings a year,
which, if this be necessary, goes to make up what the borough has
to pay to the king, or otherwise is divisible among the
burgesses. But, as Mr Round rightly remarks, 60 shillings for
this land would be a large rent.
91. D. B. i. 2: 'Ipsi quoque burgenses habebant de rege 33 acras
terrae in gildam suam.' Another version says, "33 agros terre
quos burgenses semper habuerunt in gilda eorum de donis omnium
regum.' The document here cited is preserved in a cartulary of
St. Augustin, and is printed in Larking, Domesday of Kent, App.
35. It is closely connected with the Domesday Survey and is of
the highest interest.
92. Gross, Gild Merchant, ii. 37.
93. We do not even know for certain that when our record says
that the burgesses and the clerks held land 'in gildanm suam,'
more was meant than that the land was part of their geldable
property. See Gross, Gild Merchant, i. 189. In the Exon Domesday
the geld is giidum.
94. D. B. i. 154.
95. See above, p. 179.
96. In modern York the freemen inhabiting the different wards had
rights of pasture varying fronm ward to ward: Appendix to Report
of Municipal Corporations' Commissioners, 1835, p. 1745. York is
one of the towns in which we may perhaps suppose that there has
been a gradual union of several communities which were at one
time agrarianly distinct. See D. B. i. 298. Dr Stubbs seems to
regard this as a common case and speaks of 'the townships which
made up the burh' (Const. Hist. i. 101). We cannot think that the
evidence usually points in this direction, and have grave doubts
as to the existence within the walls of various communities that
were called townships. Within borough walls we must not leap from
parish to township.
97. D. B. i. 203. As to the whole of this matter see Mr Round's
paper on Domesday Finance in Domesday Studies. vol. i.
98. Hist. Eng. Law, i. 635.
99. D. B. i. 2I9.
100. The case of London is anomalous; but not so anomalous as it
is often supposed to be. On this point see Round, Geoffrey de
Mandeville, 347 ff. On the Pipe Roll of 2 Hen. II (pp. 24, 28)
the citizens of Lincoln are accounting for a farm of £180, while
the sheriff in consequence of this arrangement is credited with
£140 (blanch) when he accounts for the farm of the shire. This is
as yet a rare phenomenon.
101. As to the round sums cast on the boroughs, see Round in
Domesday Studies, i. 117 ff.; also Round, Feudal England, 156.
102. This may not have been the case in East Anglia.
103. D. B. i. 252.
104. D. B. i. 298. Of York we read: 'In the geld of the city are
84 carucates of land, each of which gelds as much as one house in
the city.' This seems to point to an automatic adjustment. To
find out how much geld any house pays, divide the total sum that
is thrown upon York by the number of houses + 84.
105. Mr Round (Domesday Studies, i. 129) who has done more than
anyone else for the elucidation of the finance of Domesday, has
spoken of 'the great Anglo-Saxon principle of collective
liability.' This may be a useful term, provided that we
distinguish (a) liability of a corporation for the whole tax
whenever it is levied; (b) joint and several liability of all the
burgesses for the whole tax whenever it is levied; (c) liability
of each burgess for a share of the whole tax, the amount that he
must pay in any year being affected by an increase or decrease in
the number of contributories.
106. See the entry touching Colchester, above, p. 244, note 2.
107. D. B. i. 1.
108. D. B. i. 238. The custom of Warwick was that when the king
made an expedition by land ten burgesses of Warwick should go for
all the rest. He who did not go when summoned [summoned by whom?]
paid 100 shillings to the king; [so his offence was against the
king not against the town.] And if the king went against his
enemies by sea, they sent him four boat-swains or four pounds in
money.
109. D. B. i. 56 b.
110. D. B. i. 179.
111. At Chester (D. B. i. 262 b) the twelve civic iudices paid a
fine if they were absent without excuse from the 'hundret.' This
seems to mean that their court was called a hundred moot. It is
very possible that, at least in the earliest time, the moot that
was held in the borough had jurisdiction over a territory
considerably larger than the walled space, and in this case the
urban would hardly differ from the rural hundred. A somewhat new
kind of 'hundred' might be formed without the introduction of any
new idea.
112. D. B. i. 336.
113. Hist. Eng. Law, i. 631.
114. Green, Town Life, vol. i. ch. xi.
115. D. B. i. 189.
116. D. B. i. 336 b.
117. D. B. i. 336 b.
118. D. B. i. 298.
119. D. B. i. 262 b.
120. R. H. i. 354-6.
121. Besides the well known English books, see a paper by Konrad
Maurer, Sitzungsberichte der Akademie der Wissenschaften zu
München, Philosoph.-philolog. Classe, 1887, vol. ii. p. 363. In
the Leges Edw. Conf. 38 section 2, the 'lagemanni et meliores
homines de burgo' seem to serve as inquest men, rather than
doomsmen; while the lahmen of the document concerning the
Dunsetan (Schmid, App. I.) seen to be doomsmen.
122. Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642.
123. D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui
consuetudinem reddunt et 100 pauperes burgenses qui non possunt
reddere ad geltum Regis nisi unum denarium de suis capitibus.' D.
B. ii. 116, Norwich: 'Modo sunt in burgo 665 burgenses anglici et
consuetudines reddunt, et 480 bordarii qui propter pauperiem
nullam reddunt consuetudinem.'
124. D. B. i. 108 b.
125. Whether the novum burgum mentioned in D. B. i. 17 is
Winchelsea or Rye or a new town at Hastings seems to be
disputable. See Round, Feudal England, 568.
126. D. B. i. 26 b, 27.
127. D. B. i. 4 b.
128. D. B. i. 4 b. See also, 10 b.
129. D. B. i. 12.
130. D. B. i. 345, 283 b. It has been said that Leofric gave
Newark to the see.
131. Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from
Yorkshire Archaeological Journal), p. 126.
132. D. B. i. 316 b. The estate is ingeldable and therefore looks
like an ancient possession of the king.
133. D. B. 337 b: 'Toftes sochemanorum teignorum.' Some
commentators have seen here 'sokemen thegns'; but the other
interpretation seems far more probable.
134. Had these towns been described in Great Domesday, they would
probably have been definitely placed outside the Terra Regis.
135. D. B. ii. 311, 312, 385.
136. D. B. ii. 319 b.
137. D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.'
For Sudbury, see D. B. ii. 286; for Beccles, 369 b.
138. D. B. i. 136 b: 'In burbio huius villae 52 burgenses.' The
word burbium looks as if some one had argued that as suburbium
means an annex to a town, therefore burbium must mean a town. But
the influence of burh, burg, bourg may be suspected. A few pages
back (132) the burgum of Hertford seems to be spoken of as as
'hoc suburbium'. It is of course to be remembered that burgus or
burgum was a word with which the Normans were familiar: it was
becoming the French bourg. It is difficult to unravel any
distinctively French thread in the institutional history of our
boroughs during the Norman age; but the little knot of traders
clustered outside a lord's castle at Clare or Berkhampstead, at
Tutbury, Wigmore or Rhuddlan, may have for its type rather a
French bourg than an English burh. Indeed at Rhuddlan (i. 269)
the burgesses have received the law of Breteuil.
139. For Taunton, see D. B. i. 87 b: 'Istae consuetudines
pertinent ad Tantone: burgeristh, latrones, pacis infractio,
hainfare, denarii de hundred, denarii S. Petri, ciricieti.'
Compare the document which stands as K. 897 (iv. 233): 'Daet is
aerest... seo men redden into Tantune cirhsceattas and
burhgerihtu.' See also K. 1084 (v. 157): 'ut episcopi homines
[apud Tantun] tam nobiles quam ignobiles... hoc idem ius in omni
haberent dignitate quo regis homines perfruuntur, regalibus
fiscis commorantes.'
140. D. B. ii. 5 b.
141. D. B. ii. 104.
142. D. B. i. 163.
143. D. B. i. 75.
144. D. B. i. 100, 108 b.
145. D. B. i. 86 b.
146. D. B. i. 87.
147. See above, p. 188.
148. D. B. 38 b, 44.
149. D. B. 64 b.
150. D. B. 66.
151. The burgesses belonging to Ramsbury are really at Cricklade:
D. B. i. 66.
152. It seems very possible that already before the Conquest some
boroughs had fallen out of the list. In cent. x. we read, for
example, of a burh at Towcester and of a burh at Witham in Essex.
We must not indeed contend that a shire-supported town with
tenurial heterogeneity came into existence whever Edward the
Elder of the Lady of the Mercians 'wrought a burh.' But still
during a time of peace the walls of a petty burh would be
neglected, and, if the great majority of the inhabitants were the
king's tenants, there would be little to distinguish this place
from a royal village of the common kind. See for Towcester, D.B.
i. 219 b; for Witham, D. B. ii. 1 b. In later days we may see an
old borough, such as Buckingham, falling very low and sending no
burgesses to parliament. It will be understood that we have not
pledged ourselves to any list of the places that were boroughs in
1066. There are difficult cases such as that of St. Albans; see
above, p. 181. But, we are persuaded that few places were deemed
burgi, except the shire towns.
153. A last relic of the old borough peace may be found in
Britton's definition of burglary (i. 42): 'Burglars are those who
feloniously in time of peace break churches, or the houses of
others, or the walls or gates of our cities or boroughs (de nos
citez ou de nos burgs).'
154. By a charter of enfranchisement a lord might introduce
burgage tenure and abolish 'servile customs'; but it must be, to
say the least, doubtful whether he could, without the king's
licence, confer upon a village the public status of a borough and
e.g. authorize it to behave like a hundred before the justices in
eyre. This is one of the reasons why sheriffs can draw the line
where they please, and why some towns which have been
enfranchised never obtain a secure place in the list of
parliamentary boroughs.
155. Hist. Eng. Law, i. 630. When it is being said that if land
in the borough escheats, it always escheats to the king, the
mesne tenures are already forgotten within the borough, just as
in modern times we have forgotten them in open country. The
burgher's power of devising his land made escheat a rare event,
and so destroyed the evidence of mesne tenure.
156. See above, p. 256. Also the king might give away an
undivided share of the borough. Apparently the church of
Worcester had received the third penny of the city ever since the
day when the burh was wrought by the ealdorman and lady of the
Mercians. See above, p. 237.